#### *E. R. Calhoun and H. A. C. Walker, executors of George Holloway, deceased,*vs. *Thomas Furgeson, administrator of Rebecca Holloway, deceased.*

Bequest to certain persons, naming them, “ trustees of the South Carolina Conference School, Cokesbury, Abbeville district, S. C., and their successors in office, as a fund m trust for the following specific use or uses,” &c; *held,*that the bequest was valid.

Testator bequeathed the whole of his estate, consisting of land, slaves, horses, cattle, hogs, *provisions,*farming utensils, furniture, &c., to his wife for life, with remainder over; he died in August, 1846, and his widow, the tenant for life, died in May, 1847; the *general condition*of the estate was improved, while in the hands of the tenant for life, and it was, when delivered over to the remainder-men, in as good plight as when she received it, though there was an *accidental deficieoicy of provisions ; Held,*that the representative of the tenant for life was not liable to account to the remainder-men for that deficiency.

The principles upon which a tenant for life of personalty, — whether it be a specific chattel, or an entire estate given as a unity, and whether it be consumable in the use, or not consumable, reproductive, or not reproductive, — is liable to the remainder-man, considered.

*Before*Caldwell, Ch., *at Abbeville, June,*1848.

The decree of his Honor, the Chancellor, is as follows:

Caldwell, Ch. This case comes up on an appeal from the decree of Mr. Lesley, the ordinary of Abbeville district, on the adjustment of the estates of George Holloway, and of his wife, Rebecca Holloway, between their legal representatives.

George Holloway, by his last will and testament, made on the 3d of August, 1846, devised and bequeathed as follows, to-wit:

“ Item 2d. I will and bequeath to my dearly beloved wife, Rebecca, after the payment of my just debts, *all my estate, both real and personal, during her natural*life,” *&pc.*

“ Item 4th. It is my will and desire, that at the death of my dearly beloved wife, Rebecca, all my estate, both real and personal, not otherwise disposed of by the provisions of my will herein before made, be sold in the following manner, to-wit: I particularly enjoin it on my executors to sell in families, and in no other, the negroes of my estate, but the balance of the property as they may think best.”

*161“ Item 5íh. I will and bequeath, at the death of my dearly beloved wife, Rebecca, all the residue and remainder of my estate, both real and personal, unto the Rev. William M. Whitman, (and others, naming them,) trustees of the South Carolina Conference School, Cokesbury, Abbeville district, S. C., and their successors in office, as a fund in trust for the following specific use or uses,” &c.(A)

The ordinary held the bequest and devise good in remainder; but that the estate of Rebecca Holloway, the tenant for life, was not accountable to the remainder-man for $756 00, the value of the provision crop made during the year before the death of the testator, who died the last day of August, 1846, and that her life estate was not accountable for $527 00, the hire of the slaves and the rent of the land from the death of Rebecca Holloway, the tenant for life, who died in May, 1S47, to the first of January following, when the property was taken into possession by the surviving executors.

The administrator of Rebecca Holloway appealed from the decree of the ordinary, on the grounds :

1st. “ Because the bequest in remainder to William M. Wight-man and others, as a fund, in trust, is illegal and void.” I can see nothing in the terms of the will that can render it void, and its provisions are certainly much, more definite in every respect than Burnet’s will, *(Attorney General*vs. Jolly, 1 Rich. Eq., 99-109,) by which he devised and bequeathed the whole of his estate, real and personal, to his wife, during the term of her natural life, and after her death, “ to the Methodist Church, of which she may be a member at the time of her death, to be appropriated to the uses and purposes which the Conference may’ deem most advantageous for said Church ; more especially for the support of Sunday Schools, for the purchase of Bibles, religious tracts, and the distribution of the same among the destitute, and for the support of Missionaries.” This was held a valid bequest to the Methodist Church, of which the tenant for *162life was a member when she died, and that this Court can execute the trusts.

2d. *“*Because the said bequest in remainder is in trust to a supposed corporation which never had existence by such name. The School at Cokesbury, Abbeville district, was incorporated, but the gift was not directly to the School as a corporation, but to the Rev. William M. Wightman, Henry Bass, N. Tally, H. Spain, James Dannelly, H. A. C. Walker, James H. Wheeler, Mat. J. Williams, C. S. Beard, and T. R. Gary, trustees of the South Carolina Conference School, Abbeville district, S. C., and their successors in office, as a fund in trust for the following specific use or uses,” &c. Whether these gentlemen were trustees or not of the School, cannot change the trusts of the will. If they were to decline to execute, or if no successors were appointed, it would be competent for this Court to appoint trustees to carry out the will. A trust never fails for want of a trustee, while equity exists. But there was no proof that they were not trustees, and the fact will be presumed, unless disproved.

3d. *“*A trust results to the next of kin of testator, as the whole bequest is void; and that the ordinary should have decreed to Thomas Fergeson, administrator, one-half of the estate of George Holloway, as representative of said Rebecca.”

The objects of the trust are well defined by the terms used in the will, and the mode of administering the charity is prescribed with sufficient clearness and certainty. Neither our common or statute law forbids such charitable donations. These grounds are, therefore, insufficient to invalidate the will.

The executors of George Holloway appealed from the decree of the ordinary, on the following grounds :

1st. *“*That the ordinary erred in not holding the estate of Rebecca Holloway, the tenant for life, accountable to the remainder-man for $756 00, the value of the provision crop made during the year before the death of the testator, who died the last day of August, 1846.” The Act of 1789, (5 Stat.) provides that “ the slaves which were employed in making a crop, shall be con tin-tied on the lands which were in the occupancy of the deceased, *163until the crop is finished, and then be delivered to those who-have the right to them ; and such crop shall be assets in the executors or administrators hands, subject to debts, legacies and distribution ; the taxes, overseer’s wages, expenses of physic, food and clothing, being first paid,” &c. His wife had the right to the use of his whole estate during her life, after payment of the debts; and the testator certainly did not intend that she should sell off the provisions raised on the plantation, and convert them into money to increase his estate, and that *she*should incur the expenses of supporting the property. It would seem that the testator intended that the property should support *her and*itself.¡ so that she should not impair it. If she had made merchandise of the provisions raised in 1846, instead of using them, as contemplated by the testator, then it would seem there might be some claim on her estate as assets of the testator, in her hands as executrix. The case of *Robertson*vs. *Collier,*(1st Hill Ch. 370,) distinctly recognises the doctrine laid down by Justice Nott, in *Patterson*vs. *Devlin,*(1 M’M. Eq. 459.) He says, “ lands are sometimes given to one for life, together with slaves, stock of horses, cattle, plantation tools, and *provisions,*with a limitation over-. In such a case, the perishable articles cannot be considered as belonging absolutely to the tenant for life, neither can they be sold, because they are necessary for the preservation of the estate. The tenant for life must therefore be considered as a trustee for the remainder-man, and must preserve the estate, with all its appurtenances, in the situation in which he received it; he may therefore be required to give an inventory of the property, or security for its preservation, according to circumstances. The tenant for life will be entitled to the increase of the stock and the rents and profits of the land; but he must keep up the stock of cattle, horses, *provisions,*and implements of husbandry, in the condition in which he received them; for although some of the articles may be consumed in their use, and others are wearing out by attrition of time — -yet?, when taken altogether, being reproductive, the estate must be made to keep up its own repairs.”

*164The words of the will being in the present case clearly within this principle, which I think must govern, the decree of the ordinary must be modified accordingly.

2d. *“*That the ordinary erred in not holding said life estate accountable to the remainder-man for the sum of $527 00, the hire of the slaves and the rent of the land, from the death of the tenant for life, in May, 1847, to the first of January ensuing, when they were received into tho possession of the executors:”

This ground is incompatible with the principle heretofore laid down, and is in conflict with the decision of the Court of Appeals in 1827, in *Leverett et al.*vs. *Leverett et al.,*(2 McCord’s Ch. 84,) and the more recent case of *Herbemont, adm’r.*vs. *Percival,*in the Court of Law in 1840. (1 McMul. 59.) These two cases have given, I think, a correct construction to the Act of 1789, and any other view would be not only inconsistent with the intention of the statute, but would be unsettling the uniform practice that has been adopted in adjusting estates that come within its provisions.

It is therefore ordered and decreed, that the case be remitted to the ordinary, and that he hear testimony, if necessary, and that the account be modified agreeably to the view expressed in this opinion.

Thomas Fergeson, the administrator of Rebecca Holloway, appealed, and moved for a reversal of so much of the decree as declared,

1st. That Thomas Fergeson, as administrator of Rebecca Holloway, deceased, was liable to account strictly for the value of all personalty of the estate of George W. Holloway, deceased, which came into her possession as tenant for life.

2d. That the bequest in remainder to William M. Wightman and others, was certain and valid.

*Thomson*& *Fair,*for the appellant.

*Wilson,*contra.

(A)

 The Reporter having been unable to procure a copy of the will, cannot state what were the uses expressed in it.

Johnston, Oh.

delivered the opinion of the Court.

*165The second ground of appeal was not pressed in the argument ; and is clearly untenable, according to our decisions.

The only point made under the first ground, was that the decree should not have declared Mrs. Holloway, the life-tenant, liable to re-produce, at the expiration of her life-estate, the same amount of corn which she received with the estate, or account for the value of the deficiency, *(a)*

It is important in the first place to determine whether the testator incended to give her the property devised to her for life, with a view to her enjoyment of it in kind, or whether the gift was made with reference to the value and not the specific enjoyment of it.

Where the benefit contemplated by the donor, is the mere value of the property; the long settled rule is so to dispose of the property, that the interest of both life-tenant and remainder-man shall be protected, and neither be promoted at the expense of the other. This is accomplished by the sale of the property, giving the interest of the proceeds to the life-tenant during life, and turning over the capital to the remainder-man upon the life-tenant’s death.

If the personal enjoyment of the property, itself, was intended ; a sale of it cannot be ordered, because that would defeat this intention: but, in such cases, the tenant for life is to hold and enjoy the property given, under a liability, however, to render such an account for whatever part of it may not be forthcoming to the remainder-man, as the rules of law impose, respect being had to the nature and character of the property which has been lost.

Where the bequest is specific in terms, there can of course be no doubt as to the intention. There may be doubt where the bequest is residuary in form. Where that is the case, the general rule is to regard it as evidence that the intention was not to *166confer the personal enjoyment of the property in kind, but the mere benefit arising from its value. But this rule is ancillary, only; and is employed solely for the purpose of discovering the true intention of the testator : and if, by the context of the will, or in any way from its face, the mind is persuaded (notwithstanding the residuary form of the bequest) that a personal enjoyment was intended, such will be the construction, and effect will be given to it with all its incidents.

The will of George Holloway, under which the questions, made in this case, arise, manifests an intention that his widow should enjoy the property, itself, given to her for life; and a directly different intention as respects the remainder-men. The direction that it be sold at her death,.excludes the idea that it was to be converted before, or that it was to be taken from her; and the direction that the proceeds of the property, and not the property itself, be given to the remainder-men, is inconsistent with the notion that they were designed to have any interest in it beyond the money to arise from the sale.

To these considerations may be added the relations which these two parties bore to the testator, and the consequent interest he may be supposed to have felt for them respectively.

There are other stray expressions throughout the will, not taken notice of in the decree; which, separately, may not have much influence, but which, taken together and added to the considerations already commented on, serve to strengthen the conclusion to which I have come.

This being the construction, then; — that the property was specifically given to Mrs. Holloway, we are prepared to enquire whether her estate is bound to account for the corn which she received.

This was but a part of the body of the property given her for life. That property consisted of land, slaves, horses, cattle, hogs, farming utensils, household furniture, &c.

The personal property falls under two general heads: (1) such as was consumable in the use of it, and (2) such as was not so consumable.

*167For instance, tinder the former head among other things must be reckoned, provisions, — including the corn which is the subject of litigation in this case. Under the second head might fall, among others, plate, furniture, &c.

But each of these classes may be further divided into two descriptions, according to their qualities, and distinguished as reproductive or not re-productive.

Thus; under the first head, of articles consumable in the use, may be ranked not only, those of corn, wine, &c. — which are wholly consumable, and entirely destitute of the quality of reproduction; but, also, flocks, which, besides sustaining themselves by natural increase, yield a surplus for consumption.

Again; under the second head, of property not consumable in the use, we have not only plate, furniture, &c.; which are perfectly incapable of increase; but, also, slaves, which while strictly inconsumable, are eminently reproductive by procreation.

Now, the liability of a life-tenant for these different kinds of property, separately considered, is regulated by law, according to the specific qualities of the property itself.

For property entirely consumable in the use, and entirely destitute of the power of reproduction, the life-tenant is not accountable at all. It is incapable of being limited in remainder, where it is given to be used in kind. The use of it necessarily consumes it, and there is nothing left upon which the limitation can attach. This is the doctrine of all the cases : and necessarily so, because, upon principle, no other doctrine can be predicated of such property.

For property not consumable, but at the same time incapable of increase or reproduction, such as plate, &c. the liability of the life-tenant is restricted to the mere surrender of it to the remainder-man, who must take it with such deterioration as may have arisen from the reasonable use of it: — for any abuse, or for the wanton destruction of the property, the life-tenant is responsible.

For flocks and herds, consumable but reproductive, the rule is still different. The life-tenant is entitled to all the increase *168beyond what is necessary to keep up the stock; and, therefore, is bound to the exercise of extraordinary diligence for keeping it up and delivering it over, undiminished, to the remainder-man. I will not say that he is bound, at all hazards, for the original stock; for the relation he bears to the remainder-man is that of trustee, — a relation of confidence — and though he is *prima facie*bound for the property, and the burden must be upon him to show diligence and integrity, in the performance of his duties, — yet it is not clear, upon principle, that he is liable if he does shew fidelity to his trust, and that the flock has perished, not by his fault, but by the act of God, — as by pestilence, earthquake, or other unavoidable providence.

A still different rule exists as to slaves: reproductive, but not consumable. The increase of these do not belong to the life-tenant, so as to enable him to appropriate them beyond the term of his life. They follow the status of the original stock slaves, and are his as long as the stock slaves are his: — during his life:— at his death both the stock slaves and the increase go over to the remainder-man, as they stand: and the life-tenant is only accountable for such as remain; unless he has diminished their number, or the value, by his misconduct. For loss occasioned by the act of God, he is not responsible.

Upon these principles the accountability of a life-tenant is governed, where these articles of property are given to him, as separate things. The property is taken up in detail, and the degree of his accountability is suited to the character of each article.

It must be observed, however, that the ground of accountability is the trust character of the life-tenant; and it is applied as the fundamental principle to each detached article of property, though it leads to different results, according to the qualities of the property itself.

If we were to take up the things comprised in the bequest to Mrs. Holloway, and consider them separately, it follows from what I have said that she must be excused from liability for the corn; which was consumable in the use.

*169But there is another method of considering the subject: in which the entire mass of property given to her may be regarded as one gift; and in the investigation of the subject in this way, also, the same principle of trusteeship applies.

This method appears to have been first broached by Mr. Justice Nott in *Patterson*vs. *Devlin*(a) and subsequently applied by Chancellor Harper, in *Robertson*vs. *Collier.**(b*)

Says Judge Nott ; — “ There is another view of the subject which deserves consideration, and which is somewhat peculiar to the situation of this country. Lands are sometimes given to one for life, together with the slaves, stock of horses, cattle, plantation tools, and provisions; with a limitation over. In such a case, the perishable articles cannot be considered as belonging, absolutely, to the tenant for life; — neither can they be sold, because they are necessary for the preservation of the estate. The tenant for life must, therefore, be considered as a trustee for the remainder-man; and must preserve the estate with all its appurtenances, in the situation in which he received it.” *“*The tenant for life will be entitled to the increase of the stock and the rents and profits of the land: — but he must keep up the stock of cattle, horses, provisions and implements of husbandry, in the condition in which he received them: — for although some of the articles may be consumable in their use, and others are wearing out, yet, when taken all together, being .reproductive, the estate must be made to keep up its own repairs.” •

Chancellor Harper, after quoting these observations, adds:— “ These views are so full and explicit, that little need be added to them. The principle is the same, though extended in its application, by which a tenant for life, in England, is foi bidden to waste the estate; and is required to make ordinary repairs, — or any other tenant is required to keep up the original stock. The ■ tenant for life is entitled to the use of the estate; but it is such ■use as a prudent proprietor would make of his estate. The profit.of an estate is the nett income, after defraying all neces- ‘ ' *170sary expenses. Thus the relative rights of the tenant for life and remainder-man, will be the same whether the estate be sold and the proceeds vested, or retained in kind. If at the termination of the life estate, all the articles of the sort mentioned are not in as good condition as when he received it, the tenant must make good the deficiency.”

I fully assent to so much of these opinions as place the responsibility of the tenant for life upon the footing of a *quasi*trustee, whose duty it is to preserve the estate for the remainder-man ; and makes the test of his fidelity the care and attention which a prudent owner would exercise over his own property. This is the true ground; and it applies not only to a tenant for life of an estate, as an entire subject, but to one to whom detached articles of property are given by the same tenure. Each is responsible for prudent and judicious management; and neither of them is at liberty to deteriorate the property by managing it ,for his own benefit, at the expense of the remainder-man.

But-it ^eems to me, that the distinction which is justly taken in the cases of *Patterson*vs. *Devlin*and *Robertson*vs. *Collier*between an entire estate, given, as an unity, for life and limited in remainder, and the gift and limitation of specific articles of property, in the same way, — is not carried out by the decisions made in these cases; — by which the account is directed to be taken, not of .the whole estate, as one subject, but of its component parts, in detail. Nor does it appear to me entirely consistent with the principle laid down; i. e. — that the fidelity and responsibility of the trustee are to be tested by his prudent management of the whole estate; — to make him responsible for particular parts, which may happen to be deficient notwithstanding such management; and, indeed, where the particular deficiency may have arisen from the prudent management of the whole estate. Nor am I satisfied that either reason or principle require that the trustee, though he may have, upon the whole, improved the estate, is responsible because he does not deliver it over, in the exact plight, or condition, in which he received it.

*171There are I think subsequent decisions in which the doctrines of these cases have been modified: but they have not been referred to in argument, and I cannot find them.

I think the inquiry should be made into the particulars of the estate and their value, at the time the remainder takes efiect, for the purpose of discovering whether that which is to go over is substantially the same estate which was received by the life-tenant, and of the proper value, and whether, upon the whole, it is in as good a plight (though not in the exact plight) as when the life-tenant took possession. If these conditions be fulfilled; where is the ground for charging the life-tenant?

One species of stock may have been diminished, while another has been increased: and so far from its being proof of ill husbandry, it may be evidence of real judgment to have made-the alteration. Shall the remainder-man take the benefit of the. improvement, and require an account of the minor loss which it occasioned ?

Suppose, again, the implements of husbandry on the plantation, when the life-tenant took possession, were of a character utterly un suited to the proper culture of the land: suppose there was a superabundance of plow-horses; suppose the wagons and carts were deficient, and manure could not be collected or spread in requisite quantities; would it be bad husbandry, — or would it be injurious to the estate, — to convert the surplus horses into proper instruments for cultivating and keeping up the land, and at the same time diminish the expenses of the plantation? Will no other rule secure the fidelity of the trustee, than to confine him to pre-existing methods of culture, and exclude him from the advantage of all agricultural improvement, by requiring him to re-produce the plantation, with all its appurtenances, (though merely ancillary) in the precise shape' in which he received it ?

In a series of years, a severe drought may occur, and reduce the quantity of provisions produced. If the tenant should happen to die when such a crop has been produced: is he to be the *172exclusive sufferer, though at the same time the whole estate goes over in an improved condition?

If the tenant is guilty of misconduct; if he has mis-managed for his own exclusive profit, to the injury of the estate, or the remainder-man: if he has sold any of the negroes; if he has planted nothing hut cotton and sold that for his own benefit, neither raising nor purchasing provisions ; such conduct is not faithful; it is not the management which a prudent owner of the property would have adopted, — and he must answer for it.

But if upon the whole, he has been faithful and diligent and judicious, and has not deteriorated the substantial parts of the estate, or the estate as a whole; he should not be made to suffer.

It is admitted in this case, that the general condition of the estate was improved while in Mrs. Holloway’s hands, and that it was, when delivered over, in as good plight as when she received it, though there was an accidental deficiency of corn: and I do not think her representative was accountable for that deficiency.

It is ordered that so much of the decree as held him accountable for it be reversed. In all other respects it is affirmed.

Duniíin and Dargan, CO. concurred.

*Decree modified.*

(a)

 See, for the doctrine applicable in such cases, *Porter*vs. *Tournay,*(3 Ves. 310); *Howe*vs. Dartmouth, (7 Ves. 137); *Fearns*vs. *Young,*(9 Ves. *551); Randall*vs. *Russell,*(3 Meriv. 190); *Gillespie*vs. *Miller,*(5 Johns. Ch. 21); *Westcott*vs. *Cady,*(Id. 334); *Patterson*vs. *Devlin,*(McM. Eq. 459); *Robertson*vs. *collier,*(1 Hill Ch. 370).

(a)

 McMul. Eq. 459.

(b)

1 Hill Ch. 370.