#### *John Rainsford*vs. *James Rainsford and others.*

1. Testator bequeathed to his grand-daughters, E and M, an absolute and unconditional property in certain slaves, by name; and in subsequent clauses, gave the bulk of his remaining property to trustees, for the use of his son, “T. R, for and during the term of his natural life, and after his death, in trust for the child or children of the said T. R,” &c., who, at the execution of testator’s will, had no other children except E and M. In the eighth clause of his will, he directed that if his son, T. R, “should die, leaving other children besides the said E and M, that the said E and M shall have no more of the property hereinbefore devised to their father, *than shall he sufficient to make their shares equal to the distributive shares of such other child or children?*

2. Testator’s son, T. R, was appointed guardian of E. and M, and was to have the use of the property devised to them, until they came of age or married, for their maintenance and education. Complainant was the only other child that testator’s son, T. R, left living at the time of his death.

3. In making partition of the property and estate devised to the son for life, and at his death, to his issue, it was *held*that the specific legacies to the grand-daughters must be estimated at their value, not at the decease of the son, but at the time of the death of the testator.

4. The grand-daughters took vested interests at the death of the testator, though the possession was postponed; and had they died before the son, that interest alone would have been transmitted to their heirs.

5. Where a partition had been made, during the minority of complainant, of the property devised to testator’s son for life, and at his death, to his issue, between himself and the defendants, the grand-daughters, of testator, and their husbands, and it was alleged by the latter, in opposition to the bill of the former for a re-partition, that since he came of age, he had confirmed the partition so made, by continuing in possession of the property allotted to him, and by receiving the money on two notes of hand, which had been given him by defendants for equality of partition' — It was held, as to the former ground taken for a confirmation, that as complainant, after the partition, and after coming of age, continued to live with his mother, the executrix of the tenant for life, who had removed since the filing of the bill, and as he was not bound to abandon the property and leave it derelict, it could not be sustained. And as to his act, in receiving the money secured by the notes, it not being such as would operate any fraud or injustice to the defendants, or give any undue advantage to complainant, if the contract were set aside, it was not a confirmation.

6. In relation to the confirmation of contracts made by infants, it must distinctly appear, that the act was intended to confirm, or that it was of such *386a nature as to operate a fraud oh the other party, if the contract were not affirmed — or in other words, gives an advantage to the infant contracting paity, to which he would not be entitled, but on the supposition of the validity of the contract. *Tide Smith*vs. Lowe, 1 Atlc. 589; *Whaley*vs. *Dcmson,*2 Sch. & Lef. 367; *Belton*vs. Briggs, 4 Dess. 365. Held, that if complainant had been of full age at the time of the partition, he was entitled to relief, .on the ground of mistake. To confirm such a contract, it must appear that the party was aware of the mistake, of his right to be relieved, and that he intended to confirm, of which there was no evidence in this case. *Vide Gist*vs. *Gist,*1 Bailey Eq. 343; *Cocking*vs. Pratt, 1 Yes. 400.

7. Testator bequeathed a legacy to certain persons in trust, for the benefit of a grandson, residing in England, provided, within the term of ten years from the day of his decease, he removed to and established his permanent residence and abode in this State; and in a subsequent clause, provided, that if the said grand-son should not, within the said term of time, remove to this State, that the property so devised, should be held m trust for his son, T. R, “in the same manner, and subject to the same limitations, as the property hereinbefore devised to him.” The *contingency not*having occurred, it was held, that the legacy to the grand-son must be included in estimating the property given to T. R. for life, and at his death, to his issue.

8. The rules of this court which are commonly considered to apply to. an act of confirmation, where a contract is held to be vitiated on the score of implied fraud, *held*not to apply to this case. In such case, the party is supposed to be under some disability of ignorance, weakness, or necessity, or to stand in some relation of confidence, which disqualified him from making a contract on an equal footing, and before he can confirm, it must be shewn that the disability was removed, and that he was aware of his title to relief.

9. The statute of distributions which *prescribes the*manner in which advancements are to be valued in cases of intestacy, has no application in a case of testacy.

This was a bill for partition and relief.

The bill sets forth, that John Rainsford was the grandfather of complainant. That he duly made and executed his last will and testament, on the twenty-fourth day of March, one thousand eight hundred and eighteen, and died in July of the same year, having appointed John Tarrants and John Hollingsworth his executors, who refusing to act as such, administration, with the will annexed, was committed, by the Ordinary, to Thomas Rainsford, a son of the testator, and the father of the complainant. That *387the te,stator, amongst other things, devised and bequeathed *to the*said Tarrants and Hollingsworth, all his lands in this State, consisting of about eight hundred acres, and certain negro slaves, by name, with all his money on hand at his death, except one thousand dollars, in trust for the use and benefit of Thomas Rainsford, during his natural life, and after his death, in trust for his children, with a further limitation, in case he should die without leaving issue living at his death.

In another clause of his will, the testator gave and bequeathed in trust, certain slaves, by name, and live hundred dollars in cash, for his grand-son, John Rainsford, son of Joseph Rainsford, then resident in England, upon the express condition that the said John should, within the term of ten years from the day of his decease, remove to, and establish his permanent residence in, this Slate. A similar bequest is made for the benefit of James Rains-ford, another son of the said Joseph Rainsford, upon like condition. James Rainsford removed to this State, and accepted the bequest.

The testator provides, that if his said grand-sons should not remove to this Slate within the time limited, the property so given and bequeathed to them, should be held in trust for Thomas Rainsford, in the same manner, and subject to the same limitations, as the property devised to him.

John Rainsford, of England, not having complied with the condition upon which the legacy was bequeathed to him, it inured to the benefit of Thomas Rainsford.

The testator gave and bequeathed to his grand-daughters, Esther and Mary, daughters of his son, Thomas Rainsford, an absolute and unconditional property in certain slaves, by name, with their future increase, and appointed their father their guardian. He directed that he should have the use of the property so bequeathed to his grand-daughters, until they came of age, or married, for their maintenance and education. The testator further provides, that if Thomas Rainsford should die, leaving other children besides Esther and Mary, they should have no more of the property devised to their father, than might be sufficient to make their shares equal to the distributive shares of such other child or children.

*388Esther Rainsford married James Rainsford, formerly of England, in 1833. The other grand-daughter married Lewis C. Cantelou, the same year. The property specifically bequeathed to them, was delivered 1st January, 1834.

Thomas Rainsford died in December, 1837, leaving, besides his daughters Esther and Mary, John Rainsford, the complainant, who was born after the death of the testator, and attained his majority, 2d July, 1840. The bill alleges that the land devised to Thomas Rainsford had greatly depreciated in value during his lifetime, from use and cultivation — that no benefit enured to him from the pecuniary bequest, as the whole amount of cash on hand, at the death of his testator, was but $296, a sum insufficient to pay the specific pecuniary bequest to James Rainsford— that of the negroes bequeathed to Thomas Rainsford, one had died in his lifetime, and the others, being men grown at testator’s death, had become, at the date of Thomas Rainsford’s death, nearly valueless from old age. That of the negroes bequeathed to John Rainsford, of England, but ultimately enuring to the benefit of Thomas Rainsford and his children, one had died. The bill expressly charges, that the property bequeathed to either of the granddaughters, was, separately, of greater value at the death of Thomas Rainsford, than the whole of the property bequeathed in trust for the said Thomas and his children, including the portion bequeathed in the first instance to John Rainsford, of England; and that, consequently, by the just construction of the will, *neither the*said Esther nor Mary was entitled to any portion of said estate and property, beyond that which was specifically bequeathed to them — that the whole belonged to complainant.

The bill further states, that shortly after Thomas Rains-ford’s death, whilst complainant was a minor, on the 6th January, 1838, James Rainsford and Lewis C. Cantelou, as the representatives of their wives, and without any legal process or authority, procured a valuation and ap-praisement to be made by two gentlemen of the district, of all the estate and property bequeathed and devised in trust for Thomas Rainsford and his children, including the portion conditionally bequeathed to John Rainsford, of England. That said estate and property was estimated at *389$10,400, rating the property bequeathed to Esther and Mary at the sums to which they had been appraised in 1818, (without any reference to the appreciation of value from the increase of the negroes, and the change of times.) That James Rainsford and L. C. Cantelou had possessed themselves of certain portions of the estate and property devised and bequeathed to the said Thomas Rainsford and children, in order to *equalize their shares,*according to their peculiar notions, with the share of complainant, the values being estimated according to the appraisement of 1838. Complainant alleges, that since he had attained full age, he had executed no act which was intended, or could be fairly interpreted, to confirm the partition of 1838.

The bill prays that the defendants, James Rainsford and L. C. Cantelou, may set forth the names, ages, general description and value of the slaves bequeathed to their wives, respectively, with their increase at the decease of Thomas Rainsford, or on 5th January, 1838. That they might be decreed to deliver up the property received by them under the partition of 1838, to complainant; account for their rent and hire, and renounce and release all claim to any portion of the estate and property bequeathed and devised in trust for Thomas Rainsford and children, or John Rainsford, of England; or for a writ of partition, to divide the said estate and property among the children of Thomas Rainsford, if the negroes bequeathed to Esther and Mary, by just appraisement, at the death of Thomas Rainsford, should be ascertained to be, respectively, of inferior value to the whole estate devised to Thomas Rains-ford and children, and John Rainsford. That complainant’s share might be adjusted and apportioned to him in severalty. That John Rainsford, of England, might be perpetually barred and restrained from setting up any claim under the conditional bequest in the will of testator, *&c.*

The statements of the bill were generally admitted by the defendants, but it was contended, that complainant had confirmed the partition made, since he came of age.

The cause came on to be heard before his Honor, Chancellor Harper, at Edgefield, June Term, 1842, who made the following decree.

*390Harper, Cii. As the will, upon the construction of which the decision, in this case depends, has been often before the court, and is published at length, (Dud. Eq. 66.) I do not think it necessary to give any detail of its provisions. I annex, however, the brief of the bill, which gives the complainant’s case. The defendants, in substance, admit the statements of the bill, but supposing the partition spoken of to be void, on account of the complainant’s infancy, they allege that he has confirmed it since he came of age. Two acts or circumstances of confirmation are relied on. The first, that he continued in possession of the property allotted to him, after he came of age; and secondly, that he received the money due on two notes of hand, which were given to him by the defendants, James Rainsford and L. C. Cantelou, for equality of partition.

With respect to the first of these, it was explained, that after the partition, and after coming of age, he continued to live with his mother, the executrix of Thomas Rains-ford, who had previously had possession of the property. She had removed since the filing of the bill. But independently of the explanation, there is nothing in this. He was not bound to abandon the property and leave it derelict. With respect to the second alleged act, the evidence is, that the notes were given by the defendants, Cantelou and Rainsford, at the time of the partition, and deposited in the hands of Dr. Adams. That upon his coming of age, complainant applied for and received them, and that they were paid by Cantelou on the 22d of August, 1840, and by James Rainsford, on the 30th of November, 1840.

The first question which I shall consider is, whether the persons called on to make partition adopted a correct or erroneous mode of estimating the value of the property, with a view to the equality directed by the will of the testator, John Rainsford. A question seemed to be made, with respect to the bequest to John Rainsford, of England, whether the property bequeathed is to be included, in estimating the estate given to Thomas Rainsford for life, and at his death, to his issue, or whether that is to be equally distributed, and then the specific bequests to the testator’s grand-daughters made equal out of the estate given in the first instance to Thomas Rainsford. But this can hardly *391admit of doubt. The property was given to John Rains-ford, of England, upon a contingency, and if that contingency should not happen, the direction is express, that it “ should be in trust for the said Thomas Rainsford, in the same manner, and subject to the same limitations, as the property hereinbefore devised to him.” And this conforms to the notion of general equality, among his grand-children, which it is evident the testator contemplated.

I think the persons appointed to make partition were mistaken as to the manner in which they supposed the respective portions of property were to be valued — estimating those given specifically by the testator to his grand-daughters, Esther and Mary, according to the ap-praisement made of them after the testator’s death in 1818, and that given to Thomas Rainsford for life, and at his death, to his issue, as of the time of the partition, or of Thomas Rainsford’s death. They were probably misled by the direction of the Act of distributions — that in case of intestacy, *advancements*are to be valued as of the time of the intestate’s death. But the Act has no application at all in a case of testacy.

If property be given to one for life, and at his death, to his children, to -be equally divided between them, there can be no doubt but that the equality intended, is at the death of the tenant for life, when the property vests in possession, and that it must be valued as of that time. It would make no difference, if it were directed that certain of the children should take specific portions of the property, and so much of the residue as would place all upon a footing of equality. But this is understood to be the effect of the will, according to the decisions of the courts in the former case of *Rainsford*vs. *Rainsford.*It is held that a beneficial interest was given to Thomas Rainsford for life, in the property bequeathed to Esther and Mary, subject only to a charge for their maintenance and education. They were not to have the possession of any beneficial interest beyond maintenance and education, until the death of Thomas Rainsford. But however this may be, it is clear that the children of Thomas Rainsford, other than Esther and Mary, were to take nothing till their father’s death. It is then that the property given to him *392is to be divided, of course it is then that Esther and Mary are to be put on a footing of equality, and then the valuation must be made. There is an analogy between the case of *Mcdo-ugald*vs. King, 1 Bail. Eq. 154, and the present, and the equity of the conclusion may be sustained by the same sort of reasoning. Esther and Mary were to be maintained and educated out of the property bequeathed to them; any other children would be maintained and educated out of the property given to their father. Up to the time .of his death, advantages were equal, and equality should be preserved in making the final distribution.

The next question relates to the confirmation of the partition, after the complainant came of age. I do not suppose the rules to apply, which are commonly considered to apply in this court to an act of confirmation, when a contract is held to be vitiated on the score of implied fraud. In such case, the party is supposed to be under some disability of ignorance, weakness or necessity, or to stand in some relation of confidence, which disqualified him from making a contract on an equal footing, and before he can confirm, it must be shewn that the disability was removed, and that he was aware of his title to relief. But if there were no other disability but infancy, the party, on coming of age, is of course aware of his title to relief- — he knows that he may avoid the contract made whilst he was an infant.

I have looked a good deal into the cases in relation to the confirmation of contracts made by *infants,*and it appears to me, either that it must directly appear that the act was intended to confirm, or that it was of such a nature as to operate a fraud on the other party, if the contract were not affirmed — or what, perhaps, amounts to the same thing, to give an advantage to the infant contracting party to which he would not be entitled, but on the supposition of the validity of the contract. Thus, where on coming of age, one had sold a horse purchased during infancy, and then pleaded infancy to the note given for the purchase money, if the plea had been allowed to prevail, this would have been a fraud, either on the other party, or the purchaser of the horse; the infant having put it *393out of his own power to rescind the contract. In *Smith*vs. Low, 1 Atk. 489, where a mother, acting as guardian, leased the land of infants, and they accepted the rent for ten years after the youngest came of age, this was held to be a confirmation. But the court said it was in its power to confirm a contract beneficial to infants, and that the contract in question was beneficial to them, as the premises needed repairs, which they were unable to make, and the tenant had covenanted to make. I may add, that it would have been a fraud on the tenant, to evict him after having laid out his money in repairs. So in the case of *Whaley*vs. Dawson, 2 Sch. <& Lef. 367, which was a bill for partition, the defendants relied on a former partition, made by the plaintiff’s father and guardian, during his infancy, which, it was alleged, the plaintiff had confirmed upon coming of age, by leasing out the moiety in his possession, and part of it at an under value, which would render it unequal and unjust to the defendants, if there should be a re-partition. In this case, the plain till had acquiesced for 15 or 16 years. On the final hearing, relief was refused, on the ground of the long acquiescence, and that the defendant’s tenants had laid out large sums in improvements, on the faith of their title being in severalty. In every case of lease by an infant, the tenant is encouraged to lay out monies in improvements. In *Belton*vs. Briggs, 4 Dess. 365, the infant party, three years after coming of age, joined in the conveyance of a tract of land, which was held to have been purchased in substitution for the land sold by his mother and guardian, and received his proportion of the purchase money. This was held to be a confirmation of the sale made by the mother, and certainly he would have gained a most unconscientious advantage if it had not been so held.

In the present case, there certainly does not appear any express intention to confirm. Then, was the act of the complainant, in receiving the money secured by the notes, such an one as would operate any fraud or injustice to the defendants, or give any undue advantage to the complainant, if the contract were set aside *%*Plainly not. If there should be a re partition, the money received on the notes will be taken into the account in allotting his share. Dis*394tribution of personal estate, is supposed to be made in money. Suppose the partition to be void, the complainant has received no more than he would be entitled to-— he has not received so much.

But apart from the disability of infancy, I have no doubt that the complainant, if of full age at the time of the partition, would be entitled to relief, on the ground of mistake. It is not like the case of a party contracting in ignorance of the law, of which he can afford no evidence, but that he made a contract disadvantageous to himself. The source of the mistake appears. He was misled by the conduct of the persons making the partition, and ac-quiesed in their judgment, as to the proper method of Valuing the property. The case of *Gist*vs. Gist, 1 Bail. Eq. 343, in some of its features, bears a considerable resemblance to the present. Then, if the receiving of the money on the notes were a confirmation, so far as respects the infancy, Would it confirm the contract made by mistake'? To confirm such a contract, it must certainly appear that the party was aware of the mistake and his right to be relieved, and that he intended to confirm. But I have no evidence of any such knowledge or intention in the present instance. He may have been advised before filing his bill, that he was entitled to relief, but that was probably on the- score of his infancy; the matter has been 1 irrigate d, and it may be said that the mistake will not be fully ascertained until the final judgment of the court. In *Cocking*vs. Pratt, 1 Ves. 400, a daughter, a short time after coming of age, entered into an agreement with her mother, for the distribution of her father’s personal estate; which agreement, after the daughter’s marriage, was confirmed by her husband. It turned out that she received much less than her proper share, and the court relieved. The Master of the Rolls observed, that she did not intend to take less than her full share, but was under a misapprehension as to the value of her share; it was not a cáse of compromise for ready money, as wanting to marry. This was hot a case of compromise; the complainant did not intend to take less than his full share, and was misled as to what that share was.

*395It is ordered and decreed, that a writ of partition issue to make partition of the property and estate devised by John Rainsford to his son, Thomas Rainsford, for life, and at his death, to his issue, between the complainant and the defendants; and that the parties produce for the purpose, every portion of the said property in their possession ; that the commissioners to the said writ of partition, value and appraise the said property and estate, and also the property bequeathed by the said John Rains-* ford to his grand-daughters, the defendants, Esther and Mary,, as of the time of the death of the said Thomas Rainsford, and that they allot to the said Esther and Mary, and their husbands, such a proportion of the property and estate first mentioned, as being added to the value of the property bequeathed to them specifically, will leave to be allotted and assigned to the complainant, property of equal value with the aggregate of theirs respectively, giving to each an equal provision from the entire property derived by them from the estate of John Rains-ford; the money received by the complainant, on the notes of the defendants, James Rainsford and L. C. Cantelou, to be accounted as so much received on account of his share, and the defendants to account for the rents and profits of any excess of property which may have been in their possession, over and above what they may be found entitled to on the present partition, or to account for interest on the estimated value of such excess, Defendants to pay the costs.

The defendants appealed from the decree of his Honor, Chancellor Harper, and moved the Court of Appeals to reverse or modify it, on the following grounds.

1. That the partition sought to be set aside by the bill, is obligatory on the plaintiff, inasmuch as after he was of full age, he confirmed said partition, by retaining possession and exercising ownership and control over the land and negroes assigned to him, and by receiving and collecting the amount of three promissory notes given by the defendants, to equalize the portions of the parties.

2. Because the plaintiff is not entitled to relief on the ground of *mistake,*as no such ground is presented by the pleadings or the proof.

*3963. Because the. increase of the negroes bequeathed to Esther and Mary, should not have been taken into the estimate at all, in the partition, and especially the increase of the said negroes after the marriage of the said Esther and Mary in 1833, in the lifetime of their father, Thomas Rainsford.

4. Because the legacy to John Rainsford, of England, should be equally divided between the said Esther and Mary, and the plaintiff, and should not be regarded as on the footing of the property given in trust to Thomas Rains-ford, under the will of John Rainsford.

5. Because the costs should be paid either by the plaintiff or out of the estate.

6. Because the decree is, in other respects, against equity.

*Griffin & Bart,*for appellants.

*Warcllaw & Carroll,*contra.

*Curia, per*Johnson, Ch.

The court concur in the decree of the Circuit Court, except in the directions to the commissioners to make partition, that the legacies to Mary and Esther, including the issue and increase of .the slaves after the death of the testator, should be estimated at their value at the death of Thomas Rainsford.

We agree with the Chancellor, that the rule prescribed by the Act of distributions, has no application to the case. That applies only to cases of intestacy. The testator had the right to prescribe another; and what that is, can only be resolved by his will. In the first clause, he gives to his grand-daughter, Esther, an absolute and unconditional property in eleven slaves, by name; and in the same clause, he gives to his grand-daughter, Mary, in like manner, twelve other slaves, by name. In the third and following clauses, he gives the bulk of his remaining property to trustees, for the use of his son, “ Thomas, for and during the term of his natural life, and after his death, in trust for the child or children of the said Thomas Rainsford,” (fee. At the time of the execution of the will, Esther and Mary were all the children he had, and in the eighth clause of his will, testator directs, that if his said son Thomas Rainsford “should die, leaving other child*397ren, besides the said Esther and Mary, that the said Esther and Mary shall have no more of the property herein before devised to their father, *than shall be sufficient to make their shares equal to the distributive share of such other child or*childrenAnd he then goes on to appoint Thomas Rainsford, guardian of Esther and Mary, and directs that he shall have the use of the property devised to them, until they come of age, or marry, for their maintenance and education.

The complainant, John Rainsford, was the only other child that Thomas Rainsford left living at the time of his death; and the question is, whether the legacies of Esther and Mary are to be estimated at their value, at the death of the testator, or at the time of their marriages, which happened before the death of Thomas Rainsford, or at the time of his death.

In the events which have happened, there is no doubt, that the rule adopted in the circuit court decree, is the best calculated to effect equality amongst the legatees; but no rule can be just, which will not lead to tlie same results, under every variety of circumstances.

If we were at liberty to conjecture what the testator would have ’done, if the matter had been distinctly, presented to his mind, we should readily conclude that he intended to put all his grand-children, whether born before or after the execution of his will, on perfect equality. But we cannot travel out of the will for his intention, and judging from this, it is apparent that under different circumstances, the rule adopted by the circuit court would effect great inequality. If, for example, the estate devised to Thomas Rainsford, for life, and limited over to his children, had so much depreciated as to be greatly inferior in value to the specific legacies to Esther and Mary, the will gives complainant no right to call on them to contribute to make it equal to their portions; and so, I apprehend, if their legacies had depreciated, and the rest of the estate had greatly appreciated in value, Esther and Mary w’ould have no right to resort to it to repair the depreciation.

It is not questioned that Esther and Mary took a vested interest in the legacies to them, at the death of the testator, though the possession was postponed, and if they *398had died before Thomas Rainsford, that interest, and that alone, would have been transmitted to their heirs ; and that itself is a conclusive answer to the inquiry as to what they took under the will, and the value can only be ascertained by reference to the time of the death of the testator.

It is, therefore, ordered and decreed, that in the partition ordered by the circuit court, the specific legacies to Esther and Mary, be estimated at their value at the time of the death of the testator. In all other respects, the decree of the circuit court is affirmed.

Dunkin, Ch., concurred. Harper, Ch., dissented.

Johnston, Ch., absent from indisposition.