#### *Pleasant Moon et al.*v. *Nancy T. Moon.*

Columbia,

Nov. 1848.

Testator begins his will by expressing a desire “to dispose of all his worldly estate,” &c., then the clause materially affecting the question, is as follows: — ■ “ *I give*to my wife, Nancy T. Moon, the tract of land whereon I now live, containing two hundred acres, more or less; also two negroes, (to wit: my man Stephen and my girl Harriet,) *during her natural life or widowhood,” remainder over, fyc.*— held that these subjects were disjoined, and that the general devise of the, land carried the fee.

Tenant for life, who removes the property from the State, may be arrested under a writ of *ne exeat,*and compelled to give security not to depart the State, but abide the judgment of the Court, &c.

Tenant for life, who has sent slaves of the life estate beyond the limits of the State, should be required to give bond and good security to the Commissioner for the delivery of the slaves and their increase to the remainderman, at the expiration of the life estate.

*328*Before*Caldwell, Ch. *at Greenville, June Sittings,*1848.

The original bill was filed by Pleasant Moon, Robert D. Moon, John Moon, Sarah Cureton and David Cureton, ]rer husband, Elizabeth Fair and her husband, and Caroline Cure-ton, against Nancy T. Moon. The plaintiff states that John Moon departed this life some years since, leaving a will duly executed, of which the exhibit Ais a copy. The clause out of which the controversy arises, is as follows : *“*1st. After the payment of my debts and funeral expenses out of my estate by my executors, hereafter to be named, I give to my wife, Nancy T. Moon, the tract of land whereon I now live, containing two hundred acres, more or less, also two negroes, (to wit) my man Stephen, and my girl Harriet, during her natural life, or widowhood, and further give to my wife, Nancy T. Moon and her heirs forever, the following property, after my decease, (to wit) one black horse, named Charley,” &c.

The plaintiff states that the negroes, with their increase, have remained in the possession of the said Nancy T.’ Moon, ever since the death of the testator, until within a few days past; that the plaintiffs have understood, and verily believe, that the said slaves, (to wit,) Harriet, *Henry,*John and Hannah, have been removed by the tenant for life, for the purpose of defeating the interest of the remaindermen ; that the brother of the said Nancy T. Moon, who ran off some' years since to Texas, has been lately seen in this State, and plaintiffs believe that he has returned with a view of aiding and assisting his sister in the removal of herself and property from and without the limits of this State. If the slaves are permitted to be removed out of the limits of this State, the plaintiffs’s interest in them, at the death of the defendant, will be entirely lost; that they will be sold by the tenant for life, and it will be impossible for the remaindermen ever to find them and identify them. The slaves have not been seen at the house of Mrs. Moon, the defendant, since Friday last, and she refused to give any satisfactory account about their absence. The plaintiffs prayed for the writ of *ne exeat*against Nancy T. Moon, enjoining and restraining her from going out of the State, and requiring her to enter into security for the forthcoming of the said slaves at the expiration of the life estate in them, and to answer and abide the decree of this Court, <fcc.

The plaintiffs filed an amended bill, stating that the slave Harriet is a breeding woman, of the age of twenty-three years; Henry is about five years old, John is about three years old, and Hannah about nine months old; and that, from these facts, it is evident that the said property is rapidly increasing in value,.and will probably be much increased *329m value before the termination of the particular estate of the defendant therein; that the said slaves are now worth $1200, according to the value of negroes at present. Since the filing of the bill the plaintiffs have ascertained, beyond doubt, from information received from the friends and relatives of the defendant, and from other persons, that the said slaves have been removed from this State, and are being removed to the west, for the purpose of defeating the estate of the plaintiffs. They also allege that the defendant, Mrs. Moon, the tenant for life, is cutting down the timber on the tract of land given her during life, and committing waste; and they pray that she may be restrained from committing waste on the same, to the injury of the remaindermen.

The Commissioner, T. P. Butler, Esq., made an order, requiring the sheriff to cause the defendant to enter into bond and security in the sum of $2,000, not to go or depart from the limits of this State, (and to abide the decree of this Court,) without leave from the Court. The defendant moved to set aside this order before Chancellor Dtjnkin, who refused the motion.

The defendant’s answer states that she is the widow of John Moon, deceased, and was left, by his will, not all the negroes named in the bill, for they were not in existence at his death, but a negro man, Stephen, and a young girl, named Harriet, who then had no children, but who has since become the mother of the three children, Henry, John and Hannah, which are mentioned in the bill; about four years since the negro man, Stephen, died, and the only really serviceable portion of the negro property left to this defendant for her life, by the will of the said John Moon, was lost to her, and the girl becoming a breeding woman, has been ever since an actual incumbrance and expense, and not a benefit to her ; she was, from a child, of a delicate constitution, and has required great care and nursing from the defendant; she was lamed and diseased in one of her .ancles from accident, which materially injured her value, and at this time she .and her children, in this country, would probably sell for less than one-half of the bond required by the plaintiff’s writ of *ne exeat.*The united ages of the' three children amount to about nine years — the oldest being about five, and the youngest one year — that at the time of the filing of the biíl the said negroes were doubtless beyond the limits of this State, and beyond the power and control of the defendant then and •since. She denies that her brother visited the State of Georgia for the purpose of carrying off the said negroes and herself- she admits, however,’without being called on specially to do so, that she did receive a letter from her brother, B. Li-gón, one of the two executors of the will of her late husband, John Moon, residing in the State of Mississippi, who urged *330her, as a brother, and executor of the estate, to bring or send tjje negroes to that State, and to come and live at his house the remainder of her days, and the negroes were sent off to that State in anticipation of her own future removal. This course the defendant felt constrained to adopt by many pressing hardships and severe trials growing out of the loss of the only serviceable portion of the negro property before mentioned — the consequent want of other means to cultivate the tract of land, devised to her by the will of her husband, the necessity she found herself under of actually supporting, instead of being supported, by, the negro girl and the three small children. In addition to all this, she was annoyed by threats of lawsuits and menaces from the plaintiff, Pleasant Moon, who forbade her clearing any of the land she lived on. The defendant was disposed to surrender the said negroes at once to the remaindermen under the will, and did propose to the said Pleasant Moon, long before the filing of the bill, to give up to him, as the executor of the will, the said negro girl and children, to rid herself of their possession and the incumbrance consequent upon it, with the understanding that the negroes might be sold, and the defendant to receive the interest on the net amount, the capital sum tobe secured to the remaindermen, to be paid them after her death. It is certain that, to be obliged to keep the negro girl in this country as a life estate without the privilege of selling her, rvould be an injury instead of a benefit to any one having no other slaves to assist in her support, as is the case with this defendant ; and she cannot be persuaded that any just code of morals or principles of equity can require of the defendant, at her time of life, to become the nurse of little negroes, and a servant of servants, for the plaintiffs and their posterity ; especially when the will of her late husband evidently intended that she should be supported by the negroes left to her.— The executor, Pleasant Moon, refused this proposition, principally on the ground that the increase of the negroes would be stopped; but he proposed to take from the defendant the children of the negro girl, Harriet, as fast as they might become of an age to be of some little service, and leaving the small and helpless on her hands. Such was the accommodation proposed by the plaintiff, Pleasant Moon. Thus was the defendant prepared to listen to the overtures of her brother, Blackman Ligón, the other executor of the will of her husband, and a more responsible onevthan Pleasant Moon— at least in the opinion of this defendant; and she cannot be mistaken as to his greater kindness and consideration for her welfare; and it has been under his advice that she has acted. What control or agency he has exercised in the disposition of the negroes since they left her possession, is unknown to this defendant.

*331The defendant Suggests that she was arrested by á Writ of *ne*exeat, to prevent her from doing what already had been done : sending the property out of the State — which, as ten-1" ant for life, she had a right to do, and even to sell her life estate. She has not been able, during her three month’s confinement in jail, to have the negroes brought back to this Country. She has written, and that immediately after her arrest, through her counsel, to Blackman Ligón, the executor of the will, urging the importance of his exercising every care to secure the negroes, if not already sold ; and if sold, that the money should be secured, if possible to be done; but as yet no answer has been received to that communication.

This defendant has committed no act in contravention of the writ since her arrest. The security required by the writ she is, and has been, unable to give, and does not expect ever to be able ; and whilst this defendant denies the right of the plaintiffs to the relief sought by their bill, she is willing to do all in her power to meét the just demands of the remainder claimants in the negroes; and she is willing and disposed either to restore the negroes, if in her power, or authorize any one, under the direction of the Court, to receive the nett proceeds of their sale, if they have been disposed of since their removal from this State, or their actual value to be estimated according to the value or price which such negroes would bring in this District, and to have the fund invested *to*secure the rights of the plaintiffs, this defendant being allowed to receive the interest thereon during her life. This defendant insists that the value of the negroes is much below the amount stated in the bill and affidavit of the plaintiffs, ($1200.)

As respects the charge of waste, committed on the land devised to this defendant, she entirely denies the right of the plaintiffs to question, before this Court or any other tribunal, her acts in regard to it, as she is advised that the land belongs to her in fee simple, according to the fair and legal construction of the will; and she knows, from the highest authority, his own words, that it was the intention of the testator to give her the said land in her own right; and she confidently submits her rights in the same to the judgment of the Court. But this defendant would state that she has not committed waste on the land, or used it further than was actually necessary for her support on the same. To derive any benefit from the land, it has been necessary for her to clear portions of it, as the older cultivated parts were long since exhausted, and in so doing she has conformed to the universal custom of the country in the management of lands.

Upon hearing the case upon the bill, answer, &c. his Hon- or decreed as follows:

Caldwell, Ch. The plaintiffs certainly had a right to-*332come into this Court to protect their interest in the slaves that defendant has removed from the State. Her answer admits that it was done in anticipation of her own removal, and if that had been effected, as she designed, the plaintiffs would have no indemnity or security against the injury to their rights, except the remedy of a writ of *ne-exeat.*The moment she and the property were out of the State, no Court in this State would have jurisdiction, and the mode of redress adopted by the plaintiffs appears to have been peculiarly proper, and the only means of saving the estate of the remainder-men from the irreparable loss that impended it. The defendant’s pretence, that her brother in Mississippi is more responsible than Pleasant Moon, has overlooked the material facts, that he resides out of the jurisdiction, and has no property within it, or that he could not be made a party to any judicial proceedings so as to bind him. This makes him. entirely irresponsible, and is no excuse for her unlawful act. The provisions of the will indicate the rights and duties of the tenant for life ; she has the privilege of enjoying the property for the period of her life, but has no right either to run it off or waste it. It is not within the range of probability that the testator had the remotest idea that the tenant for life would attempt to remove the slaves out of the State, for he made no distinction between their use and the use of the land, and no doubt intended they should be enjoyed together.

Coretes t. Ar-drain et al. 1 Hill. C. R. 157.

Ib. 373. Bentley etal. v. Long et al. 1 Stuart, arts.

E. R. 43. Smith y. Poy-as, 2 Des. E. R. 65.

The writ of ne-exeat is in the nature of equitable bail, and has been repeatedly applied to cases like this.

When it was taken out, there was sufficient ground to sustain it, and nothing has intervened since, that can deprive the plaintiffs of their remedy.

The charge of waste made by the bill against defendant, is both admitted and proved. She had no right to clear the eighteen or twenty acres of woodland, and sell the timber. She was a mere tenant for life, and had no right to any other wood but such as was necessary to repair the fences and houses, and furnish her with fire. The defendant does not disavow her intention to remove from the State; if she had got off, the plaintiffs would have been left without adequate indemnity, as the use of the land cannot be of the value of the four slaves that she has removed. As she has clearly transcended her privileges and rights as a tenant for life, she must be restrained from committing further waste. However reasonable her proposal to sell the negroes was, its rejection by Pleasant Moon did not authorize her to remove them, and she must be left where the process of the Court has placed her, until she complies with the requisitions of the law, the rigor of which this Court cannot relax; however the subject of it may excite sympathy, she must take the consequences of her own improper conduct as to th.e property. The rights *333of the plaintiffs are much more important to be preserved and protected, than the wishes or feelings of the defendant.

It is ordered and decreed, that the defendant’s motion to set aside the writ of ne-exeat be refused. It is further ordered that it be referred to the Commissioner to ascertain and

report what is the value of the plaintiff’s estate and interest in the slaves mentioned in the pleadings, and what waste the defendant has committed on the said lands; and it is also ordered and decreed, that she, her agents, servants, or any acting under her authority, be enjoined from committing any further waste on the premises.

*Grounds of Appeal.*

1st. Because the property in dispute was out of the limits of the State when complainant’s bill was filed.

2d. Because the original order of the writ of ne-exeat requires that the defendant should give bond “ to abide and *answer*the decree of the Court,” ifcc. The writ of ne-exeat and amount of the bond is also unauthorized by the case stated in the bill.

3d. Because the order enjoining the defendant from waste is not supported by the law and equity of complainants’ case ; and becase the defendant is entitled to a fee-simple in the land, according to the will of John Moon, and if not so entitled, there is no prayer in the bill to make her account for damages by waste.

4th. Because the decree is in other respects contrary to the law and equity of the case.

Thompson and Townes, for the motion.

Pelry, Young and Elford, contra.

Johnston, Ch.

delivered the opinion of the Court.

In this case we concur, generally, with the views of the Chancellor, in regard to the negroes; but we think he should have decreed that the said slaves, with their increase, be delivered up to the remainder-men at the expiration of the defendant’s life estate; and that the defendant is responsible for their delivery accordingly; and that the defendant give bond and good security to the Commissioner for their production and delivery as aforesaid: and it is ordered that the decree be reformed to that effect.

We do not concur in the decree relating to the land.

The testator introduces his will by expressing a desire “to dispose of all such worldly estate as it hath pleased God to bless him with.”

Then the clauses materially affecting this question are as follows:

> “ I give to my wife, Nancy T. Moon, the tract of land whereon I now live, containing 200 acres, more or less ; also two negroes, (to wit: my man Stephen, and my girl Harriet,) *334during her natural life or tvidowhood: and, further, give to my -wife, Nancy T. Moon, and her heirs, forever, the following property, after my death,” (all perishable.)

> « jSj farther, my will, that, at the death or marriage of my wife, Nancy T. Moon, that the man Stephen, and the girl Harret, and her increase, be sold by my executor; and the amount arising' therefrom be equally divided between my heirs, Robert D. Moon, John Moon, Pleasant Moon, the heirs of D. T. Cureton, Polly Kilgore, Nancy Ligón.”

No residuary clause; nor further mention of land.

The general devise of land, with us, carries the fee: and nothing can prevent the fee of *this*land *from*passing to the defendant, unless it was intended to be coupled with the ne-groes, so as to pass with them, upon the terms in which they were bequeathed to the widow.

But we think it very material to shew that these subjects were disjoined, and given with a separate intention as to each; that while the negroes are limited in remainder the testator makes no further mention of the land. If the testator intended to give the land as well as the negroes during life or widowhood, why does he think it necessary to the complete disposition contemplated in the preamble to his tvill, to make an express disposition of the negroes beyond the particular estate, while he is entirely silent as to the land ?

Our persuasion is that the testator supposed he had given the fee in the land, and, therefore, took no further notice of it.

This view renders it unnecessary to consider the question of waste. The defendant was not accountable, the land being her own: and that part of the bill should have been dismissed. And it is accordingly so ordered.

Dunkin, Ch. and Dargan, Ch. concurred.

*Decree modified.*