#### *Catharine Raines and her children*vs. *R. C. Woodward, sheriff, et al. Same*vs. *John Adams, sheriff, et al.*

*Feme covert*piu'chases negroes for valuable consideration, talcing conveyance to herself “ for her sole and separate use.” The conveyance needs no registration, and creditors of husband impeaching it must show that the negroes were purchased with the funds of husband.

. A mother, in consideration of love and affection for her daughter C., a *feme covert,*and for “the purpose of contributing to the support and maintenance of said daughter during the term of her natural life, and for the better support, maintenance and education of the children of said daughter, born or hereafter to be horn,” conveyed certain slaves to the said C., “in trust for the use, benefit and behoof of the said C. for and during the term of her natural life, and from and immediately after her death, in trust for the use, benefit and behoof of all the children of the said C., equally to be divided between them ; in case, however, if any of the children of the said C. shall have died in her life time leaving issue, living at the time of her death, such issue shall talco the same share of said slaves, which the deceased parent would have been entitled to if living: ” *Held*

1st. That C. took a life estate in the slaves, with remainder to her children.

2d. That the marital rights of her husband attached thereon, and, therefore, that the life estate was liable to be sold under *fi. fas.*against him.

3d. That the children were entitled to an order, that the purchasers at sheriff’s sale should give security for the forthcoming of the slaves.

*400
      *Before*Wardlaw, Cb., *at Fairfield, July,*1851.

Wardlaw, Ch. These bills, filed by the wife and children of William Gr. Raines, praying that the sheriffs of Fairfield and Lancaster may be enjoined from selling certain slaves, seized under executions against said W. Gr. Raines, on the ground of a separate estate in the wife, for life, to the slaves, with remainder to the children.

It appears that William Moore, then sheriff of Fairfield district, on July 7, 1828, under executions of Musco Boulware and of Robert Cathcart, against William Gr. Raines, sold' slaves of said W. Gr. Raines, and conveyed by bills of sale Yiny, Milly, Crecy, George, Hannah, Caroline, Lewis, Fanny and Betsy, to Musco Boulware, for the price of $868, and Nathan, Ally, William, Henson, Joe and William, to Robert Cathcart, for $686. On January 8, 1829, Musco Boulware, under his hand and seal, attested by W. R. Boulware, assigned the bill of sale he had received from the sheriff in the following words: *“*Received of Mrs. Catharine Raines, wife of Wm. G. Raines, sole dealer, $868, the amount for which I purchased the within named negro slaves, and hereby assign this bill of sale to her, for her solo and separate use, but without further responsibility on me.” On January 10, 1829, Robert Cathcart, under his hand and seal, attested by D. McDowell, assigned the bill of sale he had received from the sheriff, in the following words: “ Received of Mrs. Catharine Raines, wife of Wm. *G'.*Raines, sole dealer, $686, the amount for which I purchased the within named negro slaves, and hereby assign this bill of sale to her, for her sole and separate use, and without further responsibility on me.” It is quite clear on the proof, that Musco Boulware was paid for the negroes bid off by . him at sheriff’s sale, from the proceeds of cotton raised upon W. G. Raines’s plantation, but marked in the name of'C. Raines; and it is probable that Cathcart was paid in the same way. Without her conducting the business of a merchant, or acting otherwise than as a planter’s wife, Mrs. C. Raines was treated as a sole *401dealer. The assignments of the sheriff’s bills of sale were drawn up by counsel learned in the law, but were not recorded." The visible property of Raines was sold by the sheriff in 1829, and he was regarded as insolvent until 1835, when he seemed prosperous, and obtained extensive credit, and so continued until 1847 or 1848, when he was again sold out, except as to twelve or fourteen negroes, which he removed clandestinely from the State, leaving a large amount of executions unsatisfied, [the negroes in question were all this time worked in common with W. Gr. Raines’ other slaves.

On October 9, 1834, Nancy. Boulware, mother of Catharine Raines, executed a bill of sale to said Catharine, of the slaves Milly and Mary, Hannah and four children, William, Nancy, Harry and January, in which the • grantor recited as consideration, her love and affection for her daughter, and “ the purpose of contributing to the support and maintenance of said daughter during the term of her natural life, and for the better support, maintenance and education of the children of said daughter, born of hereafter tobe born,” and conveyed said slaves-with their future increase to the said Catharine Raines, “ in trust for the use, benefit and behoof of the said Catharine Raines, for and during the term of her natural life, and from and immediately after her death, in trust for the use, benefit and behoof of all the children of the said Catharine Raines, equally to be divided between them; in case, however, if any of the children of said Catharine shall have died .in her life time leaving issue, living at the time of her death, such issue shall take the same share of said slaves, which the deceased parent would have been entitled to, if living.” This deed was drawn by. counsel. It was recorded in the register’s office, Fairfield, May 2,1836. These negroes were not treated differently from the' negroes that belonged to W.- G. Raines. Catharine .Raines^ however, from 1829 to 1834, kept' separate accounts with factors in Charleston, and in that interval of time, sold more than two hundred bags of cotton. The negroes conveyed by Nancy Boulware had been bought by her, *402when they were sold under executions as the property of W. €r. Raines.

The bills of sale by Boulware and Cathcart to Catharine Raines, have all the material elements of a voluntary settlement by a husband embarrassed with debt upon his wife. It is demonstrated by the proof that Boulware was paid from the crop made on Raines’ plantation in 1828, and that a sufficiency of means for the reimbursement of Cathcart was also received by Mrs. Raines from her husband’s crops ; and she furnished no evidence of her having other funds. She is denominated in the assignments of these bills of sale a sole dealer, but there is no evidence that she filled such anomalous character; that she ever gave the notice required by the Acts of 1823 and 1824, (6 Stat. 213, 236;) that she ever carried on any separate trade or business whatsoever. A wife who assumes to be a sole trader, while her husband’s affairs are embarrassed, and who purchases his property, must show clearly that she had the means to make the purchases independently of her husband. In default of such showing her purchases are fraudulent. *Miller*vs. Tolleson, Harp. Eq. 145; *McMeekin*vs. *JEdmonds,*1 Hill Ch. 292. Where the husband really furnishes the funds for the purchases, no matter what may be the form of the conveyance to the wife, the transaction is in substance a, voluntary settlement by the husband; and the conveyance should be recorded as a marriage settlement. *Price*vs. *White,*Car. L. J., 297.

The question as to the negroes embraced in the deed from Nancy Boulware depends upon different principles. So far as there is any evidence on the subject, Nancy Boulware fairly acquired title to these slaves, and for good consideration transferred them to her daughter. This conveyance is not a marriage settlement needing registry. *Banks*vs. *Brown,*2 Hill Ch. 565. The difficulty in the way of Catharine Raines is that the deed contains no sufficient expression of any intention of the donor to exclude the marital rights of W. G. Raines. There is nothing in the provision that the slaves should be for the use, benefit and *403behoof of Catharine Raines for life, inconsistent with their being subject to his marital rights. *Tyler*vs. *Lalce,*2 Russ, and Myl. 183; *Blachloio*vs. *Laws,*2 Hare, 49; *Wilson*vs. *Bailer,*3 Strob. Eq. 260. It was argued that the fact of the gift being to her “in trust” for her use, &c., was sufficient to exclude the husband. In *Tyler*vs. *Lake,*in *Stanton*vs. Sail, 2 Russ and Myl. 175, and other cases, the gifts were to trustees, and did not impair the husband’s rights; in the present case no trust is definitely created. I think the injunction granted by the commissioner, of the sale of these negroes under *fi. fas.*against W. Cr. Raines, must be countermanded, so far as the life estate of Catharine Raines is concerned.

I suppose, however, that the children of Catharine Raines take - the remainder in fee of said slaves, as purchasers, after the termination of her life estate. The construction of the instrument of gift is clear, that her children were intended to take at her death as tenants in common. *Myers'*vs. *Anderson,*1 Strob. Eq. 344; *Senry f Talbird*vs. *Archer,*Bail. Eq. 535. The plaintiffs, who are children of Catharine Raines, are entitled to have security for the forthcoming of the slaves at the termination of the life estate, from those who may purchase the life estate at sheriff’s sale. *Pringle*vs. *Allen, 1 'Hill Gh.*137; *Cordes*vs. *Ardrian, lb.*157.

It is ordered and decreed, that the bill be dismissed as to all matters, except the claim of the children of Catharine Raines to the slaves conveyed by Nancy Boulware upon the death of said Catharine. It is further ordered and decreed, that upon the sale of so many of these slaves as have been taken in execution, the purchasers shall, before delivery of the slaves, enter into bond to the commissioner of this Court, with good sureties to be approved by him, in penalties equal to twice the value of the slaves, conditioned that said slaves shall not be taken beyond the limits of this State, and that those of them thep living, with any increase of the females, shall be forthcoming at the termination of Cath-arine Raines’ life estate therein. Costs to be paid out of the sales.

*404The complainants appealed:

1. Because the Chancellor erred in deciding that the deeds made bj William Moore, sheriff, to Robert Cathcart and Musco Boulware, for certain slaves, and by thorn assigned to Catharine Raines, for her sole and separate use, are fraudulent as to creditors, on the ground, that there was no proof of any funds belonging to Catharine Raines, to pay for the same, when from the proof it appeared that the money to pay for said slaves was made by their labor, on the lands of Mrs. Raines, secured to her sole and.separate use.

2. Because the Chancellor erred in deciding that by the terms of the deed for certain slaves from Nancy Boulware to Catharine Raines, no separate estate was secured to her, when from the expressions in the deed, said slaves were conveyed expressly in trust to the said Catharine Raines, for the support of hferself and education 'of her children, and being given in trust, this Court should protect the trust, and secure them from the creditors of the husband.

*McAliley,*for appellants.

Buchanan, contra.

The opinion of the Court was delivered by

Wardlaw, Ch.

The two claims presented by the plaintiffs are distinct in their origin, in the principles which govern the de•cision of them, and I may add, in the interests of the claimants.

1. As to the transfers of slaves from Musco Boulware and Robert Cathcart to Catharine Raines.'

The instruments of conveyance transfer the title of the slaves .to her, expressly for her “ sole and separate use.” If such independent title in her had proceeded from the gift of the grantors, or from sale by them where the purchase money had been paid from her separate funds, undoubtedly-such title would have been valid, and the instruments of conveyance would need no registration. Ba*nks*vs. Brown, 2 Hill, Ch. 565. And as the instruments here are formally for the separate use of the wife, and acknowledge payment by her, the defendants are bound to show *405that *they*present a false appearance, and that the payment was really made from the funds of the husband. Creditors of the husband have no just cause of complaint, unless property of the husband, liable to the satisfaction, of their claims, has been improperly diverted to the support of the husband’s family. The conclusion that there was such misapplication of the husband’s funds, depends mainly on the assumption that the plantation, which afforded the mean's of payment, belonged to the husband, at least as to the usufruct. But the proof on this point is not satisfactory. It appears from .the notes of evidence, that the plantation was derived from the bounty of the father and brother of the wife ; and some implication that the husband had no ownership of it, arises from the fact that the 'creditors did not seize and sell it under their executions. It is strongly asserted before us, that it was settled to the separate use of the wife. We are little disposed to encourage appeals, on questions of fact, from a Chancellor’s .conclusions from the evidence; or to allow parties to be again heard after one fair opportunity of establishing their claim or defence. But in the present instance, the Chancellor, who heard the cause, upon review, concurs in the propriety of another investigation for the fuller development of the facts : and such is the determination of this Court.

2. As to the slaves conveyed by Nancy Boulware to Catharine Raines.

In *Tyler*vs. *Lake,*(6 Con. Eng. Ch. R. 452,) -the trust was to pay the proceeds of real estate into the proper hands of a married woman for her own use and benefit. Lord Brougham says: *“*I take the principle to be thoroughly established, that Courts of Equity will not deprive the husband of his rights at law, unless there appears a clear intention, manifested by the testator, that the husband should be excluded.” He further remarks: “ If sufficient strength of negative words is not to be found in the gift or limitation, you- are not allowed to fish about for indications of intention from other parts of the instrument.” This latter remark has much force and point, but it must not be pressed tb the *406extent of making an exception as to this particular ease of marital rights from tbe general rule of construction, that tbe intention is to be collected from tbe whole instrument. Sir James Wigram truly says, in *Blacklow*vs. *Laws,*(24 Eng. Ch. R. 50): “ Courts of Justice invariably affirm tbe proposition that an intended gift shall take effect, provided tbe Court can find in tbe instrument a declared intention to give, although tbe simple words of limitation, unaided by implication arising out of other parts of tbe instrument, might leave the intention uncertain.”

It is argued from tbe consideration expressed in Nancy Boul-ware’s deed, to provide not only for tbe maintenance of Catha-rine Raines, but for the maintenance and education of her children, that we may infer the intention of the donor to create a trust for the immediate joint benefit of the children with their mother. If we collate the terms in the consideration with the terms of limitation, it is altogether plain that it was the intention of the donor to give not a joint estate, but the whole estate to Mrs. Raines for life, and after her death to her children. The case of the plaintiffs would not be helped by regarding the gift for the joint use of the wife and. children. In *Wardle*vs. *Clayton,*(16 Eng. Ch. R. 524,) a testator bequeathed his residuary estate to trustees, in trust, to pay the income to his wife for life, to be by her applied for the maintenance of herself and such children as he might leave at his death. The widow married again, and claimed the income for her separate use. Y. C. Shadwell rejected the claim because she was not the sole object of bounty. It is natural and usual for a donor who is under parental obligation to the donee, to express as the motive of gift, that the donee may better support himself and those who are dependent upon him ; and the expression of such motive cannot operate restrictively upon the gift.

The terms of gift or limitation in the present ease create no definite trust. We have the word, but not the thing. A trust is an equitable title in property, distinct from the legal ownership thereof. But a gift to one in trust for himself — and a gift of *407chattels to a wife is a gift to the husband — confers the whole estate, legal and equitable, upon the donee. Here no trust or confidence is reposed in the nominal trustee ; no duty or obligation distinct from ownership is prescribed to her. Her legal and equitable interests are commensurate, and nothing is to be done by her legal representatives after her death for the protection of the rights of her children in remainder. The Chancellor was well justified by the precedents he cites in protecting the legal rights of the children 'in remainder, by requiring forthcoming bonds from the purchasers of the life estate ; and no remedy more complete could be afforded to them, if we regarded their rights as equitable.

We approve the decisions of *Burnett*vs. Rice, and *Joor*vs. *Hodges,*Speer’s Eq. 579, 593 ; but those cases recognize the merger of the legal and equitable estates where the trustee has no duty to perform.

The case of *Jones*vs. *Fort,*1 Rich. Eq. 50, so strongly pressed upon us in the argument, goes quite as far as we are willing to follow, but is distinguishable from the case in hand. There, certain slaves were given to the husband in trust for the joint use of himself and wife during her life, and at her death to be distri_ buted among her children; and the trust was held to be effectual. But the husband was express trustee : the wife’s right of survi-vorship could only be protected by presenting the fusion of the legal and equitable estates; these estates were not commensurate. Chancellor Hakpeu, in delivering the judgment, says: “ As trustee, he (the husband) has an absolute estate in the property, or, as it is sometimes said, the fee ; as *cestui que trust*he has only an estate for the joint lives of himself and wife. The legal estate is exclusively in him as trustee : he takes the equitable estate jointly with his wife.”

It is ordered and decreed that so much of this case as relates to the slaves transferred by M. Boulware and R. Cathcart be remanded to the circuit Court to be heard and determined anew 1 *408and that the circuit decree be modified in this particular, and in other matters be affirmed.

JOHNSTON and DakgaN, CC., concurred.

*Decree, modified.*