#### Mrs. Elizabeth Chaplin *v.*Charles Givens, Trustee, et al.

It is a rule in equity, that if one comes into possession of trust property, with notice of the trust, he shall he considered as a trustee, and with respect to that property, hound to the execution of the trust.

It is also a principle of equity, that a *trustee,*with notice of his appointment as such, *interfering with the subject matter,*shall not be allowed to *repudiate*the trust.

What circumstances shall he considered as sufficient evidence of the acceptance of a trust.

A trustee will not he held accountable, it seems, for the loss of a negro who runs away while in the possession of the *cestuy que trusts,*entitled to the possession at the time ; in the absence of any proof specially implicating him on the score of negligence.

*Before DUNKIN, Chancellor, at Beaufort, March Term,*1838.

This case came up on an appeal, on the part of complainant, from the decree of his honor Chancellor Dunkin. Briefs of the bill and answer, and statements of the evidence and documents, are given, to which the chancellor’s decree is subjoined, as necessary to a proper understanding of the case.

*133“ The bill states, that John Givens, the father of the complainant, on the 26th of June, 1810, by deed duly executed, and bearing date the same day and year, granted, bargained, sold, conveyed and released to his brother, the defendant, Charles Givens, five negroes, named Prince, Lot, Isaac, Pompey and Abraham; and also, a certain tract of land on the Island of St. Helena, containing about 80 acres — in trust for the sole and separate use of his wife, Eliza Givens, during her natural life, and at her death, in trust, to divide and appropriate the profits of the aforesaid land and negroes, to the use, maintenance and education of his children; if more than one, equally, until they, or the survivor or survivors of them, shall “ attain the age of twenty-one years, -or are married, and *to them*absolutely to convey, or to either of them, as they, or either of them, shall attain the age of twenty-one years, or be married, the aforesaid land and negroes.” “And in case one or more of his children should be upwards of twenty-one years of age, or be married, at the death of the said Eliza Givens, to convey to such his, or her, or their proportionate part, or parts, of the aforesaid land and ne-groes, immediately; but if at such time, in case there be but one child living, (if under age,) to apply the profits to his or her maintenance until of age, or if at age at the time aforesaid, to convey the aforesaid land and negroes to him, or her, absolutely,” as in and by the said deed or conveyance, and to which a copy thereof is herewith filed, as exhibit (A.) for greater certainty therein complainant craves leave to refer.

The bill further states, that on or about the day of February, in the year 1820, the said John Givens and his wife Eliza, in conjunction with the said Charles Givens, (who had accepted the office of trustee, and long before taken upon himself the proper and conscientious execution of the several trusts declared and provided by the deed aforesaid,) by their application to this court, procured a decree therefrom, whereby the said Charles Givens was authorized to sell and convey the tract of land in the aforesaid deed described, at and for such price as the then commissioner should approve; and directed to lay out the purchase money, as in his discretion was expedient for the use of the said John Givens and Eliza Givens his wife, upon the same trusts for which the said *134Charles Givens was at that time seized of the said real estate, which said decree was in May, of the year 1821,' so far altered by the said court, upon the petition of the said Charles Givens and John Givens, as to transfer the power and authority to sell, upon the terms contained in the original decree, to the commissioner of this court.

The bill further states, that pursuant to the aforesaid decree, the tract of land therein referred to, was sold some time in the year 1821, by the then commissioner, (Benjamin H. Buckner,) to one John M’Tureous, for the sum of #2108 56, of which the sum of #1452 was received in cash, and the balance secured by bond and mortgage. And that upon the coming in of the report of the said sale at January term, 1822, the same was approved and confirmed and the commissioner was ordered by the said court to “ lay out the funds in such negro slaves as the said John Givens may purchase for the use of the *cestui que*trusts — and to take out titles in the name of the original trustee, the- said Charles Givens, and allow the said John Givens to select the property — and to collect the residue of the money when due, and lay it out upon the same terms as directed, of the funds then in hands.”

The bill further states, that the whole of the said sum of #2108, 56, with the interest on the part secured by bond and mortgage, was by Jas. L. Petigru, Esq., acting by the authority of the commissioner of this court, and as the agent of the said John and Charles Givens, laid out in the year 1822, in the purchase of sundry ne-groes, which were conveyed to the trustee, the said Charles Givens, to and upon the several trusts of the original settlement: and complainant has been informed that the following are the names of some of them, or their increase, viz: John, Rosalinda and her children, Simon, Judy and Caesar,- Beck and her children, Patty, Mariann, Sylvia and Cretia; and Cretia and Sylvia; that there are, or were others, whose names are known only to the said Charles, in whose possession also are the original deed and the subsequent conveyances and bills of sale, which complainant has never been allowed to see or copy.

The bill states, that the said John Givens departed this life some time in the year 1822, and left surviving him his wife and three *135children, all under the age of twenty-one years and unmarried— namely, Margaret and John Givens, who are now under age, and the complainant, who has lately attained to full age; that the said Eliza Givens died about the day of , 1825; and that from thence until the present time, the said Charles Givens has assumed the exclusive control and management, as well of the ne-groes originally settled, as of those subsequently purchased upon the trusts aforesaid, and been in the receipt of the hire, wages, and profits of their labor, but no part thereof has been paid or appropriated to complainant, for her support and maintenance, nor has she been permitted to derive any benefit or advantage whatever from the provisions of the said deed of settlement, made for her equal support; that the said Charles Givens, soon after he took possession of the said trust property, did so carelessly conduct himself in the management thereof, as to permit the negro John to abscond, and finally leave the country entirely, without adopting any measure whatever for his apprehension — whereby the said negro has been wholly lost to the estate: and afterwards, in the year 182 suffered the negro Rosalinda and her child Simon, to be sold by the sheriff of Beaufort district, to satisfy a debt contracted by the said Margaret and John Givens, and the purchaser to carry them beyond the reach of the said Charles, whereby they also have been lost to the estate.

The bill states, that the complainant has applied to the said Charles and requested him to discover to complainant, the names of the several negroes which were' purchased with the money arising from the sale of the tract of land in St. Helena — and to exhibit to complainant, as well the several deeds and conveyances by which the said negroes, or any of them, were conveyed to the said Charles, upon the trusts aforesaid, or a true account of the several sums of money received, or which might have been received by the said Charles, for the hire and labor of the said negroes, since the death of the said Mrs. Eliza Givens — and to divide the said negroes and their wages, including the value of the negroes John, Rosalinda and Simon, and their wages, equally among the said John and Margaret Givens, and the complainant, so that complainant shall have one full third part of the whole in severalty and pos*136session: and complainant has also applied to John and Margaret Givens, for their consent to a partition of the said trust property, in which the negroes Rosalinda and Simon, shall at their full value be regarded as part of their shares of the said property — with which request they have all refused to comply. To the end that defendants may answer, and that Charles Givens may be compelled to set forth the names of all the negroes purchased from time to time, for and upon the trusts declared and expressed in the original deed, executed in the year 1810, as well those bought by the sale of the St. Helena land, as by the sale or exchange of ne-groes named in the said deed ; and the names of the increase of the said negroes; and to produce the deeds and writings relating to the said trust estate; and that an account may be taken of all the moneys which have been received, or ought to have been received, by the said Charles Givens, for the hire, wages and labor, of the said negroes, or for any part of the trust property, since the death of the said Mrs. Eliza Givens; and that the said Charles may be compelled to make good to the said trust estate and to complainant, the loss of the negroes John, Rosalinda and Simon, and their wages; and that a partition of the said trust estate and the moneys from time to time received, or which ought to have been received therefrom by the said Charles, may be made by the decree of this court; and that a commission may for that purpose issue ; and that one-third of the whole number of negroes, which of right ought now to be in the possession of the said Charles, and one-third of the hire and wages of the said negroes, may be allotted and paid to complainant; and that the negroes Rosalinda and Simon, may be allotted to the shares of Margaret and John, as a part thereof; and that complainant may have general relief. The bill prays for a subpoena,” &e.

■=, “The answer of Cha’s. Givens states, that defendant believes it to be true, that Jno. Givens, the father of this complainant, did execute some deed of trust for the benefit of his family, and without the knowledge or consent of this defendant, did therein name him as trustee; but he,avers that he did peremptorily refuse to assume the trust, or have any charge of the same, until some time in 1820, upon solicitation of his brother and assurance of his counsel, James L. *137Petigru, Esq., that he should in no wise be committed by the act, he did reluctantly and with the full understanding on all sides,, that he did not bind himself to an acceptance of the trust, put his name as a mere formal party to the proceedings under which the lands mentioned in the deed of trust were sold.

And this defendant further answering, says that it will be perceived by reference to the proceedings, and especially the decretal order of the court, made sometime in the year. 1821; that'the charge of receiving and re-investing the moneys accruing from the sale of the estate conveyed in the deed of trust, was devolved on the commissioner of this honorable court, and this defendant acquitted of all responsibility for the same;

And this defendant denies,, positively, that he has ever seen, or had in his possession, any deeds or- bills of sale, -of any kind whatsoever, of the negroes alleged to have been purchased with the proceeds of the land, nor does he know whether any such conveyances were ever executed. He further denies that he has ever taken into possession, or exercised any authority over the negroes named in the bill, by virtue of any authority as trustee; a character, which as he never assumed, he never imagined would, or could be imputed to 'him by any one; that his interference' with the property, if any, has been either in the relation of executor to his- mother, to whose estate, he verily believes, the negroes Rosalinda and child, mentioned in the bill, rightfully belong; or, as the uncle and next friend of the infant children of his brother, dependant on him for protection and support.

This defendant further answers to the said bill of complaint and says, that with respect to the negroes Prince, Lot, Isaac, Pompey and Abraham, mentioned in said bill, as included in the original deed of settlement, he denies that he has ever had them in his possession, nor by the terms of said deed was authorized to take them into possession during the lifetime of Eliza Givens, the mother of the complainant. This defendant has heard and believes, that they all, with the exception of Abraham and Lot, died in the possession of the said Eliza, mother of this complainant-; that Lot died in the possession of this complainant herself; and that Abraham was sold by this defendant’s brother, John Givens, and the proceeds of the *138sale invested in the purchase of certain negroes, by which this complainant was advanced in the lifetime of her father.

And this defendant further insists, that if this complainant had any just cause of complaint against this defendant as trustee, or otherwise, the same did not accrue within four years next before this complainant commenced her suit, or served this defendant with process to appear and answer thereto; and therefore, such demand, action or suit, if at all it could previously have been, cannot now, within the meaning of the statute for the limitation of actions, be pursued.”

EXHIBIT A.

*State of South-Carolina*— Beaufort *District:*

Know all men by these presents, That I, John Givens, of the district and State aforesaid, for, and in consideration of the love and affection which I bear unto Eliza Givens, my wife, and for the support and maintenance of her, and the children she has, or may have by me, and in consideration of the sum of one dollar, to me in hand paid, by Charles Givens, of the place aforesaid, the receipt whereof is hereby acknowledged — have granted, bargained, sold, and released, and by these presents, do grant, bargain, sell, and release, all and singular that tract of land, situate, lying and being on the Island of St. Helena, in the district and State aforesaid, containing eighty-two acres, (more or less.) bounded by the lands of Thomas C. Vanderhorst, William C. Fripp, and Martha San-derford. And all and singular the negroes here named, to wit: Prince, Lot, Isaac, Pompey and Abraham-; to have and to hold all the aforesaid tract of land, together with all and singular the appurtenances thereto belonging, and all and singular the above named negroes, unto the said Charles Givens, his heirs, executors, administrators, or assigns, forever: Upon the special trust and confidence nevertheless, and to and for the several uses, intents, and purposes hereinafter mentioned and declared, and for no other purpose, use, or intent whatsoever — that is to say: In trust, to permit and suffer the said Eliza Givens to have, hold, and occupy, possess and enjoy, all and singular the tract of land aforesaid, and to rent or cultivate the same; and to have, hold, employ, possess, *139or hire out the above named negroes, and to appropriate the proceeds thereof in any manner she may think proper, without the interference or control of any person whatever; and without being liable to the debts of the said John Givens, in any manner whatever, for and during the term of the joint lives of John Givens and Eliza Givens : and should the said Eliza Givens survive the said John Givens, during the term of her widowhood, or in case she does not marry, during the term of her natural life; but in case I, the said John Givens, survive the said Eliza Givens, then in trust to convey the aforesaid land and negroes to me, and my heirs forever ; but in case the said Eliza Givens should survive me, the said John Givens, then, at the expiration of her widowhood, or in case she does not marry, at her death, in trust, to divide and appropriate the profits of the aforesaid land and negroes to the use, maintenance, and education of my children; if more than one, equally, until they, or the survivors or survivor of them, shall attain the age of twenty-one, *or are*married, and to them absolutely to convey, or to either of them, as they, or either of them, shall attain the age of twenty-one years, *or be married,*the aforesaid land and negroes. And in case *one,*or more of my children should be upwards of twenty-one years of age, *or be married,*at the expiration of the widowhood, or at the death of the said Eliza Givens, to *convey to such,*his, or her, or their *proportionate*part or parts of the aforesaid land and negroes *immediately;*but at such time, in case there be but one child living, (if under age,) to apply the profits to his, or her maintenance until of age ; or if of age at the time aforesaid, to convey the aforesaid land and negroes to him, or her, absolutely and forever ; if under age, when he or she attain the age of twenty-one years, or is married, to convey the same to him, or her, as aforesaid ; but in case no child of me, the said John Givens, should survive her, the said Eliza Givens, she surviving me, then, at her death, in trust, to convey the aforesaid land and negroes, absolutely and forever, to Mary Firth, Washington Firth, Sarah Firth and Caroline Firth, daughters of my sister, Mary Firth, or to the survivors or survivor of them, in equal portions, if there be more than one ; if one, to that one. And I, the said John Givens, for the consideration above mentioned, have *140granted, bargained, and sold, and by 'these presents, do grant, bargain, and sell, unto the said Charles Givens, all my household furniture, and all my horses and cattle, and stock of every description whatever; to have, and to hold the same to him, his heirs, executors, administrators, and assigns, in trust; to permit the said Eliza Givens to have, hold, and use the said furniture; and to have, hold, use, and enjoy, or sell the said horses, cattle, or stock, for and during the joint lives of the said John Givens and Eliza Givens, without the control of any person whatever, but in case the said John Givens survive the said Eliza Givens,' to convey the same to him, and his heirs forever; but in case the said Eliza Givens survive the said John Givens, then, in trust to her, during her widowhood ; and afterwards to be subject to the trusts, uses, intents, and purposes which are declared and mentioned above, of, and concerning, the aforesaid land and negroes.

In witness whereof, I have hereunto set my hand and seal, this (26th June) twenty-sixth day of June, in the year of our Lord one thousand eight hundred and ten, and in the thirty-fourth year of the Sovereignty and Independence of the United States of America. John Givens, [l. s.]

Signed, sealed and delivered, in presence of

William Cohmicic, and

James Scanlan.

*The following is the evidence of the*witnesses, &c. *referred to in the Chancellor’s Decree.*

Marcus Firth, sworn for the complainant.

Witness knows Charles Givens, once hired a negro from him, for a year, or a year and a half, perhaps two years; the negro’s name was Caesar.— Witness paid Givens a part of the hire, for the balance they have not yet come to a settlement. Charles Givens said the negro belonged to the estate of Givens. Witness expects, the estate of John Givens. A receipt was produced, (authenticated by witness,) in the following words: “ Received, Beaufort, April 5th, 1831, of M. Firth, the sum of six dollars, for three months wages of the boy. Charles Givens.” Givens gave witness this receipt; the hiring by witness commenced in 1831; witness applied to Givens for the hire of the boy.

*141William G. Trenholm, sworn for the complainant.

Witness knows Charles Givens; knows Mrs. Cartwright; does not recollect the year in which Mrs. Cartwright hired the negroes; the first year, for a part of the year, Mrs. Cartwright hired from Mr. Salinas, Beck, and Pat, and Mary Ann; the second year, Mrs. Cartwright got Beck and Pat only, from Mr. Givens; for which she was to pay him eighty dollars, and two suits of clothes apiece. At the expiration of the year, the money was paid by Mrs. Cartwright to Mr. Salinas, by the verbal order of Mr. Givens, repeated twice to the witness. At the same time Mrs. Cartwright requested witness to see Mr. Givens, and know whether he would hire the negroes at the same price for the following year; witness saw Mr. Givens, and he refused. Witness then told him he would send the negroes home, and he accordingly did it. Witness gave them orders to go to Mr. Givens. The negroes left Mrs. Cartwright ; does not know what became of them; has since seen Pat on Mr. Givens’ plantation. Witness has repeatedly since seen all the negroes, but cannot say how they wei’e employed, where, nor by whom. Witness never heard from Mr. Givens who these ne-groes belonged to ; and does not know himself who they belong to. Givens refused to hire them the second year to Mrs. Cartwright, because he would not take eighty dollars for them, he wanted more; thinks it must have been in 1833 and 1834 that Mrs. Cartwright hired the negroes; but will not be certain as to the year. Witness married Mrs. Cartwright’s neice, lived in the family for the last six years; managed the business of Mrs. Cartwright generally; the negroes were on the place ; knew the money was paid to Salinas ; was not present at the hiring between Givens and Mrs. Cartwright; he heard these things in the family. Previous to the expiration of the second year, Mr. Salinas asked witness if he thought Mrs. Cartwright could advance him the money, the *wages*of the negroes. Witness asked Mrs. Cartwright if she would, and she consented to do so ; but refused to give the sum without Givens’ order. A very few days after this occurred, Givens called on witness and authorized him to say to Mrs. Cartwright to pay' the money to Mr. Salinas without the order, which Givens repeated fio witness two different times. *142Witness never went to Mr. Givens for the order ; never had any conversation with him about the order that Mrs. Cartwright required.

In reply. — When witness says that he never had any conversation with Givens about the order, he means that he never called on Givens in reference to the order. Givens and witness met on the Bay; Givens tote witness that Salinas had called on him for an order on Mrs. Cartwright, and that he had refused to give it, and then directed witness to say to Mrs. Cartwright, to pay it.

C. G. Salinas, sworn for defendant.

Mrs. Elizabeth Chaplin has been living in witness’ house about three months. Mrs. Chaplin brought to witness’ house Margaret and John Givens, about five or six years ago. About the same time she brought there Rosina, Csesar and Judy, three negroes. About a year after, she brought Pat, and Beck, and a child, and left them all with him, to pay the board of the children. The negroes were afterwards hired out. She told him to take the negroes, and hire them out, to pay the board. Witness, a few days afterwards, met Givens at the ferry, and told him that Mrs, Chaplin had put the children with him, and these negroes, to pay their board. Givens said it was all right; he had the children, and ought to have the negroes; but that he, Givens, had nothing to do with it. Witness hired out the negroes, and received the money, and gave credit for it. — . Witness considered the property as belonging to the children. There was one written agreement in relation to the negroes. Witness ' never paid Mrs. Chaplin any money. The first year Mrs. Cartwright had Beck and Pat; witness hired them to her, and received, the money. The second year, witness delivered the ne-groes to Mr. Givens, who had been appointed guardian *ad litem,*for the ■children, who had been separately sued in the common pleas by witness for their board. The children left witness’ house some years before he delivered up the negroes, and went to Givens’. When Mrs. Chaplin brought the children to witness, she was a married woman. Her husband died afterwards, but witness cannot say 'when ; does not recollect. She was a married woman when she signed the agreement; her husband was on St. Helena. He was alive when she brought both parcels of ne-groes.

*143In reply. — Mr. Chaplin, the husband of Mrs Chaplin, while the children were at witness’ house, came frequently there with his wife. He knew of the transactions, but he never signed any agreement.

*R Chaplin’s letter to C. Givens*— {no *date.)*

Mr. Givens — Dear Sir : This is to inform you that the negroes belonging to the estate of John Givens, are at my house ; they were sent over the ferry by Elizabeth. I told Mr. Talbird that I would take the negroes and hire them out. if I could, for fifty dollars each. Margaret and John, I said, I could not take. If you will take Margaret and put her “to school, and board her out, and allow me to hire the negroes, I will pay for her board and schooling. On any other conditions I cannot keep the negroes. John, I must bring to Beaufort, and put in your charge, as he is young, and requires some person to bring him up in the world that understands it; for I am sure that I do not. And when there are two to do one thing of the kind, it will never answer. You will oblige me if you will let me know how to do and to act. Please answer this.

I am, dear sir, your most' obedient, Randal Chaplin.

*Testimony by consent.*

Mrs. William H. Talbird, for the defendant.

Knows the parties in this suit. Knew John Givens and Mrs. E. Givens; heard ef a deed, but never saw it, of land and negroes, to Charles Givens, in trust, executed ‘by John Givens. Witness was at that time living in Beaufort; was intimately acquainted with all the parties. Witness is sister to John Givens and Charles Givens.— Always understood that Charles Givens refused to act as trustee ; never knew Givens in any one instance to assume the management of the property as trustee. Never knew John Givens to consider Mr. Charles Givens as trustee of the property. [The witness thinks that if Charles Givens had been considered the trustee she would have heard it, — Objected to.] Recollects buying a boy, Abraham, one of the negroes in the deed of trust, from John Givens and wife, in February, 1813. Proves bill of sale. Wit*144nesses, Charles Givens and Joseph Jenkins. Consideration *$303.*When John Givens and wife sold the property, told witness nothing of Mr. Givens, as trustee. Sold it as their property ; they sold the boy as absolute property of their own, not as trust property. Mrs. John Givens was required to sign the bill of sale, because witness had heard of the deed of trust. Givens did not like to have any thing to do with the property, because he was desirous to avoid Mrs. Givens; that was witness’ impression. Some years before the death of John Givens, witness knows that he and Chs. Givens were at variance. John Givens was a man of small property ; he had no other property as witness believes, but what was in trust. Thinks Mrs. Chaplin was born in 1810, in the month of May. Does not recollect in what year she was married; she was married not a great while before her mother’s death. Mrs. John Givens died in 1826, first (1st) January. Witness’ mother died in December, 1822, before Mrs. Givens. Don’t know what John Givens did with the money she gave for Abraham. Does not recollect why Mr. Givens signed his name as witness to the bill of sale, nor why Joseph Jenkins signed. Knows nothing of John Givens’buying the negro Molly and her children. John Givens left three children at his death ; Mrs Chaplin was the eldest; the other two are not now of age. Mrs. Chaplin was not of age when she was married. Does not know when Mr. Chaplin died.

In reply. — Cannot undertake to say how much, or that she knew what property John Givens had in trust. Witness'recollects that John Givens did sell a negro named Pompey, to one Bushee, derived from his father’s estate. John Givens had but one negro of the name of Pompey. Recollects two negroes named Isaac and Lot; thinks they died after John Givens. Knows that one or the other of them died in possession of Mrs. Givens ; the other died on St. Helena, in possession of Mrs Chaplin. Is positive that they died in Mrs. John Givens’ possession and Mrs. Chaplin’s, and not in Charles Givens’.

In reply. — Does not know how much Mr. John Givens got for the negro Pompey; it was not much, he was an old negro. Knows not what became of the money. Heard Mrs. Chaplin speak of the death of one of the negroes, Lot; thinks Mrs. Chaplin said *145she had Dr. Scott to attend him. Certain he died on St. Helena. Charles Givens was then in Beaufort. Mrs. Chaplin’s husband was then alive.

*Testimony of C. G. Salinas.*— Examined *for Defendant.*

Mrs. Elizabeth Chaplin has been living in witness’ house about three months. Mrs. Elizabeth Chaplin brought Margaret and John Givens to witness’ house about five or six years ago. About the same time, she carried to witness the following negroes, Ro-sina, Csesar and Judy. Several months after, about a year, she put the following three negroes, Pat, and Beck, and child. The negroes were put with witness to pay for the board of the children. The negroes were hired out afterwards. Mrs. Chaplin told Salinas to take the negroes, and hire them out, to pay for the board of the children. Witness met Mr. Givens a few days after at the ferry, and told him that he had his nephew and neice with him, and the negroes. Givens said it was all *right, as he had the children, he ought to have the*negroes; *that he had nothing to do with it.*The negroes were hired out by witness, who received the money in payment of their board. There wás a written agreement between them, Mrs. Chaplin and Salinas. Witness considered the property as the property of the children. Never *paid any part of the hire to Mrs. Chaplin.*Hired two of these negroes, Beck and Patty, to Mrs. Cartwright; the first year Mrs. C. had them, witness received the money. Mrs. Cartwright paid witness the first year. The second year, the witness delivered the negroes to Givens, who hired them to Mrs. Cartwright. Givens had been appointed guardian, *ad litem,*to John and Margaret Givens, to two suits in the court of common pleas. The children left witness’ house to live with Givens, before witness delivered the ne-groes to Givens; *some years before.*At the time Mrs. Chaplin brought the children to witness, she was a married woman. Mrs. Chaplin’s husband died about . At the time of the written agreement, she was a married woman; her husband was then on St. Helena, in this parish. At the time Mrs. Chaplin brought the negroes to witness, Beck, Pat and her children, Chaplin, her husband, was then alive.

*146In reply. — While the children were there, the husband and Mrs. Chaplin used frequently to come to the house. Chaplin must have known of the transaction between Mrs. Chaplin and witness. Chaplin, the husband, never añn-med agreement. Chaplin, husband, never signed any agreement.

' *Testimony of Mrs. H. Zealy*— -for *Defendant.*

John Givens died in about September, 1822. Mrs. Givens died in 1826. Knows nothing of marriage settlement; has heard the family speak of it. Always heard Charles Givens say, with an oath, that he would *not act in the trust.*That he never would, while Elizabeth Givens was alive; and after her death, that he never would, while Mrs Chaplin had any thing to do with it. Mr. Givens never, to witness’ knowledge, intermeddled with the trust property. Recollects the boy named Abraham, mentioned in the deed of settlement. Mr. John Givens *sold the boy*Abraham *to*Mrs. Talbird, after the deed was made. Charles Givens had nothing to do with the sale of the boy Abraham, to the witness’ knowledge ; it was John Givens’ own act. Witness knows that John Givens took the money, and with it bought a woman named Charity; that he then sold Charity, and bought with the money a woman named Sarah, from Mrs. Oswald. Sold Sarah, and went to Sams’ sale; bought with *the*money a *negro, Molly,*and her child named Hannah, and her father, named June. The negroes bought at Sams’ sale, were left by John Givens in possession of Mrs. John Givens, his widow, at his death. Witness is certain that this is the fact. Understood that the above named negroes were given by Mr. John Givens, previous to his death, to Mrs. Chaplin, and considered as her property. Always thought that there was a deed. Witness knows that there was a piece of writing ; that the gift was by a piece of writing of some kind; the nature of it not known. When Mrs. Elizabeth Chaplin married, believes that these negroes went into her possession as her property. Understood they were afterwards sold for Mr. Chaplin’s debts. On Mrs. John Givens’death, Mrs. Chaplin took possession of her household property. Was present at John Givens’ death. After his death, his widow took possession of his property ; *147had the management of it. The property remained in that way, under her management, until her death, and then Mrs. Chaplin had the management of it. After the death of Mrs. Givens, Mrs. Chaplin and her husband went to Mrs. Zealy’s, the witness, and applied to her to board the children, John and Margaret Givens ; that she did board them. Witness was intimately acquainted in the family of John Givens and wife. Heard John Givens and Mrs. Givens say, that they had appointed C. Givens trustee, but that he would not act. Charles Givens, never, to witness’ knowledge, acted as trustee. Knows that one, two or three years before John Givens’ death, he was at variance with his brother, Charles Givens. Cannot recollect about what time before his death, she heard John Givens say, that C. Givens would not act as trustee. *[It was not twelve months before his death.*Witness was present at John Givens’ death.- John Givens called his mother and Mrs. Zealy, (the witness,) to his bedside; he said that he had given Molly and her family to Mrs. Chaplin, by writing; that she was safe enough. He wanted witness and his mother to witness that he gave Beck and her family to his son John; and Rosalinda and her family to Margaretta. Heard him say nothing about his brother being trustee, while on his death-bed. — Objected to.] Heard John Givens say some time before his death, that he had bought a very valuable negro, named j ack; that he had run away, and he supposed that he was a lost negro. When Mrs. Chaplin and her husband brought the children to board with witness, they made an agreement; it is in writing. Knows not where the writing is; thinks she has lost the writing, but never looked for it. They agreed to give witness one hundred dollars per an-num for each child. The children were sent first; then witness hired Rosalinda from Mrs. Chaplin, for forty dollars per year, in payment of the children’s board. Afterwards, Rosalinda behaved so bad, that she swapped her with Mrs. Chaplin for one named Beck; that one, Mrs. Chaplin afterwards took away, at the end of about two months, and hired to Mr. Salinas. Had Rosalinda one year. The children came to board with witness soon after the death of their mother; and soon after, Rosalinda was hired to witness. Mrs. Chaplin took the children from Mrs. Zealy; it was *148after she had taken away Rosalinda. She carried the children to Salinas’, .and boarded them.

Cross-examined — Witness thinks that Abraham was sold after the deed of marriage settlement. Is sure that it was after. Heard John Givens say that he had made the settlement: and after this, that he had sold the boy Abraham. Mrs. Talbird paid for the boy in cash; heard John Givens say so, and thinks that she saw a little of the money herself. Witness was not present at the sale. Knew that John Givens, with the money from Abraham’s sale, bought the wench Charity; heard him say that he had no other money. Givens got #303 for Abraham. Was not present when Charity was bought. Cannot recollect how long after the sale of Abraham, that John Givens bought Charity. Knows that it was not long. Did not hear him say why he bought Charity. Sold Abraham because he ranaway. Charity ran away too; sold Charity also. Cannot tell what he got for her; does not know who he sold her to. With the money he got for Charity, heard him say that he bought Sarah. Did not keep Sarah very long before he sold her. Sold her to Major Wigg. • Cannot tell at what price. Heard him say that he had sold her; saw her afterwards in possession of Major Wigg. With the money that he got for Sarah, he bought Molly and her child and her father. Heard Givens say that he gave three hundred and odd dollars for Molly and her child. Does not recollect what he gave for June. Cannot tell how long after he sold Abraham, that he bought Molly and her children. Recollects distinctly to have heard John Givens say, that he gave three hundred and odd dollars for Molly and her children. Has a tolerable memory; it is as good as most people’s. Never charged her memory with what year Molly, and her child named Hannah, were bought. As soon as John Givens bought Molly and her child, he brought them to witness’ house, and told witness that he had a maid for his daughter Elizabeth. Did not tell witness why he bought the negroes for his daughter. John Givens had but' one child at the time, and that was Mrs. Chaplin. Saw the piece of writing in possession of John Givens ; he told her it was the writing for the negroes, Molly and her child. Cannot say whether June was included in the writing; does not think *149June was included. Mrs. Chaplin’s father was not alive at her marriage. Heard Mrs. Chaplin say, many a time after her mother’s death, that she had possession of the negroes, Molly and her child. Heard Mrs. Chaplin say, since the death of her husband, that she had the negroes, and planted with Molly and Hannah: but how long after the death of Mr. Chaplin, does not recollect. Mrs. Chaplin and her husband took the management of the property after the death of Mrs. Givens. It consisted of negroes and furniture. Cannot recollect how long after the death of Mrs. Givens, before Mrs. Chaplin and her husband took possession of the property. Knows that they did take possession, and heard Mrs. Chaplin say, that she and her husband sold some chairs, part of *John*Givens’ property, but that- they had to get them back.— Heard Mrs. Chaplin say, in the lifetime of Mr. Chaplin, that they had possession of the property of which Mrs. John Givens died possessed, and used it. Did not get the whole of the board for the children that Mrs. Chaplin boarded with her. Got about $140 for board. The negro Rosalinda and her child were sold to pay the debt.

Cross-examined — Witness heard John Givens say, when he brought home Rosalinda and the child that she had at the time, that he bought her for his daughter Margaret. He gave her to Margaret in witness’ presence. The negroes were always considered Margaret’s by the family. Does not recollect in what year the gift was made. Always passed as Margaret Givens’. Heard John Givens say, when he brought Beck and her family home, that he bought them for John. Cannot tell in what year that was.— At the time John Givens bought Beck, thinks she had five children. Witness never saw Jack. Givens bought him at the same time he bought Beck and her children. Cannot exactly say when he bought Beck and John; thinks it was about two years before John Givens’ death. John Givens did not say how long Jack had been gone at the time of the conversation. Does not think the conversation was as much as a year before John Givens’ death. Rosalinda was hired to witness to pay the board of John and Margaret. Witness applied the proceeds of the hire to the payment of the board of the children.

*150DECREE.

“On the 26th June, 1810, Jno. Givens executed a voluntary deed, by which he conveyed to Charles Givens, (one of the defendants,) a plantation on the island of St. Helena, containing 82 acres, and also assigned and transferred to him five negroes, to wit: Prince, Lot, Isaac, Pompey and Abraham, in trust, to permit Eliza Givens, (the wife of the grantor,) to possess, use and enjoy, the plantation and negroes during the joint lives of her husband and herself, and if she should survive him, during her life: “ and at her death, in trust, to divide and appropriate the profits of the land and negroes, to the use, maintenance and education of my children; if more than one, equally, until they, or the survivor or survivors of them, shall attain the age of twenty-one years, or are married, and to them absolutely to convey, or to either of them, as they, or either of them, shall attain the age of twenty-one years, or be married, the aforesaid land and negroes; and in case one or more of my children should be upwards of twenty-one years of age, or be married, at the death of the said Eliza Givens, to convey to such, his, or her, or their proportionate part or parts of the aforesaid land and negroes immediately.” The deed was recorded in the office of the register of mesne conveyance for Beaufort district, on July, 1810. The subscribing witnesses, Wm. Cormick and James Scanlan, have been dead for several years.

John Givens died in 1822, leaving his widow, Eliza Givens, and three children, Elizabeth (the complainant,) and John and Margaret Givens, (two of the defendants). Mrs. Givens died in 1826.

Elizabeth Givens was born in May, 1810. She intermarried with Randal Chaplin a short time prior to the death of her mother, in 1826. Her husband died about 1831; but the period of his death was not fixed with accuracy. On the 7th September, 1835, this bill was filed against Charles Givens, (the trustee,) and John and Margaret Givens, who are still minors, requiring an account and partition.

The answer of the defendant, Charles Givens, avers that his name was inserted in'the trust deed without his knowledge or consent, and that he positively refused to assume the trust — that when in 1820 certain proceedings were instituted in this court for a sale *151of the plantation included in .tbe deed, he became a mere formal party, upon the express assurance that he would not thereby be bound to an acceptance of the trust — that the charge of receiving and re-investing the proceeds devolved on the commissioner of this court — that he had never taken .the negroes into possession, or exercised any authority over them, by virtue of his character as trustee; “ but that his interference with the property, if any, had been either in the relation of executor to his mother, to whose estate he verily believed two of the negroes belonged, or as the uncle and next friend of the infant children of his brother, who were dependant upon him for protection and support.”

The statute of limitations is also interposed as a defence.

■The complainant offered in evidence a bill filed by John Givens and Eliza, his wife, against Charles Givens, 29th May, 1819, setting forth.the deed of 1810, and praying that the plantation therein conveyed may be sold by the trustee and the proceeds invested upon the same trusts. The answer of Charles Givens, which is signed and sworn to on 1st February, 1820, admits the execution of the deed — that the plantation was thereby settled to the uses declared — that it would be for the interest of the complainants to sell the land and invest the proceeds in other property, to be settled to the same uses ; “ and he submits himself to the judgment of the court to do and act in the premises as to the law and the court may appertain.” At February term, 1820, an order was entered that the defendant should convey the premises, “and the purchase money be laid out by the defendant, as in his discretion may be deemed expedient, for the use of the complainants, upon the same trusts for which he is at this time seized of the said real estate.”

In May, 1821, a petition was filed by John Givens and Charles Givens, reciting the previous proceedings — that “ the said trustee had not executed the order, and that he was desirous the commissioner should make the sale, as there were certain contingent claims of dower, and an adverse claim to a few acres of the land, which might involve the trustee or the fund hereafter;” and, “that the commissioner might receive the proposals of the said John Givens for laying out the purchase money on the original trusts.” *152An order was accordingly made, that the commissioner should sell the premises without warranty against any failure or eviction. In January term, 1822, the commissioner having made his report of the sales, amounting to $2108 56, it was ordered to be confirmed, “ and that he lay out the proceeds in such negro slaves as the complainant, John Givens, may purchase for the use of the *cestui que trusts;*taking the titles in the name of the original trustee and allowing the complainant the selection of the property, as the trustee declines to choose or to purchase.” In January, 1823, in the same cause, a petition was filed by the complainant’s solicitor, John Givens, stating that agreeably to the decree of the court, he had laid out the cash part of the purchase money of the plantation in the purchase of negroes, which had been conveyed to the trustee agreeably to the trusts of the original settlement, and praying that the balance due on the purchase might be paid from the funds since received by the commissioner. An order was accordingly entered, that the “balance in the hands of the commissioner,'be paid over to the complainant’s solicitor, to be laid out by him according to the decree, in paying for the negroes conveyed to the trustee.”

An office copy of a bill of sale, of eight negroes from William Hasell Gibbes to Charles Givens, in trust, for the wife and family of John Givens, dated 5th February, 1822, and recorded on 25th April, 1822, in the office of the Secretary of State, was offered in evidence. An objection was made to the admissibility of the testimony. Written notice had been given to the defendant on 28th February, 1838, to produce the original bill of sale. His solicitor stated, as was also averred in the defendant’s answer, that he had no bill of sale relative to the property, nor did he know that any had been executed. The former solicitor of John Givens testified that he witnessed the original bill of sale from William H. Gibbes, of which he believed that produced to be-a true copy, that it was delivered to the witness, who had it recorded, and his impression was, that he gave it to John Givens, for the use of him and his family — that John Givens was his principal — he has no doubt he told Charles Givens what had been done — that he wished Charles Givens to receive the balance of the money, (about $50,) but he positively refused, asserting, as he had frequently done, that he had never interfered. The office copy was received in evidence.

*153An office copy of the deed of May, 1810, was also admitted in evidence, subject to the defendant’s objection.

Several witnesses were examined before the commissioner, whose testimony is in writing. (See ante.)

The defendant gave in evidence a bill of sale for a negro, Abraham, from John and Eliza Givens to Margaret Cormick, dated 17th February, 1813, for $303. A bill of sale from Sarah Martin to Mary Givens, of Rosalinda and her child, for $650, dated 8th May, 1816. A bill of sale from Lewis R. and B. B. Sams, executors of William Sams, to Elizabeth Mary Givens, of June and his daughter Polly, and her infant, for $261, dated 22d February, 1814. An order of Eliza Givens on Mr. Petigru, in favor of Daniel Bythe-wood, dated 23d April, 1824, for $25, which was paid. A letter from Randal Chaplin to Charles Givens, without date, but written after the death of Mrs. Givens, in 1826. (See ante. p. 143.)

Several witnesses were also examined before the commissioner on behalf of the defendant/ (See ante.)

The solicitor who had presented John Givens’ petition, testified that he had persuaded Charles Givens to become a party to the proceedings in 1820, and that he consented very ungraciously. Witness assured him that he thought there was no risk.

During the progress of the trial, it was admitted that the negroes Beck, Patty, Mary Ann, Ceesar and Judy, had been sold by the defendant, under an order of court, made in this cause at January sittings, 1837, without prejudice, and the net proceeds of sale, $3736 63, were now in the hands of the commissioner.

. It is first necessary to determine whether the defendant, Charles Givens, became a party to the deed of 1810, and assumed the duties and responsibilities of trustee. From the view which I have taken of the case, it is not important to fix the liability of the defendant at a period anterior to 1820. It seems to me, that after the proceedings which were then had, and the orders then made, with his sanction and concurrence, and in some instances, at his request, it would be of most mischievous consequence to permit him, at this late day, to deny that he-was a party to the instrument, and thus repudiate the trust.

*154But I think it sufficiently clear, from the testimony adduced by the defendant, that he held himself out as trustee, and that he exercised control over the trust property, from the death of Mrs. Givens until the sale in 1837. The letter of Randal Chaplin, (written, as is supposed, immediately after the decease of Mrs. Givens,) and offered in evidence by the defendant, shews the understanding of the parties, treats him as the proprietor, and asks his permission to hire them out. The witness, Salinas, produced by the defendant,- proves that in 1831, or about that time, he delivered the ne-groes to Mr. Givens. It is true, he adds, that Mr. Givens had been appointed guardian, *ad litem,*of the minor children, John and Margaret Givens, who had been sued by the witness in the court of common pleas' for their board. And this is the explanation or defence upon which reliance is placed in the defendant’s answer. It does not appear to me that it could avail him, even if the fact had been more satisfactorily established. It is said to be a rule in equity, that if .one comes into possession of trust property, with notice of the trust, he shall be considered as a trustee, and with respect to that property, bound to the execution of the trust.-r — 2 Mad. Ch. 125. But the principle particularly applicable to this defence is well explained by Lord Chancellor Hardwicke, in Co-nyngham v. Conyngham, 1 Yes. Oh. *522.*Coleman, *the London*trustee, petitioned to re-hear the cause, because, though named as trustee, he never accepted or acted as such, but only as agent, &c. Lord Hardwicke says, “ On all the circumstances, I think the court ought to take him to have acted with notice of this trust, and to account for it; otherwise, it would be a very dangei’ous precedent.” “The trustee might say he did not act as-trustee, but. merely as agent: To prevent this, the court ought to look very narrowly into the acts of persons in that light, and. see whether there is any ground to affect him with this trust. It was decided in that case, “ that a trustee, with notice of his appointment as such, interfering with the subject matter, cannot repudiate the trust, and say he acted merely as factor or agent.”

I think the defendant, Charles Givens, must be considered as having accepted the trust; that he was responsible in that capa*155city to the complainant, as one of the *cestui que trusts*— and never having done any act to execute the trust, or change their fiduciary relation, the defence of the statute of limitations is inapplicable.

The deed of 1810 included the St. Helena plantation and five negroes. Three of the negroes had died prior to the death of Mrs. Givens. Of the other two, Pompey, who was old and of little value, had been sold by John Givens — Abraham was also sold by John and Eliza Givens, in February, 1813, for $303; the proceeds invested in Molly and her child, who were afterwards given to the complainant and sold to pay her husband’s debts.

With the proceeds of the St. Helena plantation, were purchased (so far as I can understand from the testimony,) Beck and her family, and John. John ran away some time prior to the death of John Givens, and has never since been recovered. The fund in court is the proceeds of Beck and her family. It is sought to charge the defendant, Givens, with the loss of John, on the ground that he did not use proper diligence to recover him. It does not seem to me that there is ground for this claim. The negro escaped from the possession of John Givens early in 1822. He and his wife were entitled to the possession till her death in 1826. It is to be presumed, that those who had the most immediate interest adopted the ordinary means to recover him. In the absence of other testimony, I should think the trustee no more responsible for such casualty, than for the death of those who were in the possession of the *cestui que trust.*

The testimony is too vague to render the defendant liable for Pompey, who was sold by John Givens. It is only certain that he was an old negro and of little value.

The complainant received the proceeds of Abraham, and must be charged with it as a portion of her interest in the trust estate.

I see no evidence to warrant the inference that Rosalinda and her child ever constituted a part of the trust estate, or were purchased with trust funds. If the testimony of Mrs. Zealy is correct, (and I do not know that there is any cause to question it,) Rosalinda and her child were rightfully sold under the execution against Margaret Givens. It may be that they were an advancement on the part of her father, John Givens ; but this is not a bill *156to settle his estate, nor are all *the proper*parties before the court for that' purpose.

The letter of Randal Chaplin, taken in connexion with the other testimony, leads to the conclusion that, after the death of Mrs. Givens, all the negroes were, for some time, kept together, or hired out, for the use and maintenance of the *cestui que trusts.*It is not clear at what time Molly and her child went into the possession of Chaplin and his wife, or whether they were sold before or after his death, which occurred, as is supposed, about 1831.

It is ordered and decreed, that the defendant, Charles Givens, account for the hire of the negroes Beck, Patty, Mary Ann, Caesar and Judy, from the first day of January, 1832, to the first day of January, 1837 — that it be referred to the commissioner to ascertain and report the amount sales of Molly and her child, with interest from first of January, 1832 — that from the aggregate amount so reported, together with the amount which may be found due by the defendant, Charles Givens, and the fund in the hands of the commissioner, the costs of these proceedings, be paid. It is finally ordered, that one-third of the surplus, after deducting the value of Molly and her child, with interest, be paid to the complainant, and that the residue be paid over to the defendant, Charles Givens, to be held by him, subject to the provisions of the deed of the 26th May, 1810.”

The complainant appeals from this decree, for the following reasons:

1. Because the defendant, Charles Givens, ought to' be required to account for the hire' of the negroes named in the decree, from the death of Mrs. Givens in 1826, to the first of January, 1837.

2. Because Givens, having accepted the trust, was bound to use that degree of care which a man of ordinary prudence is expected to use in the management of his own affairs, for the preservation of the trust property — and it is no answer to a bill-for an account, to say that it has been lost,' without also showing that he took the necessary steps to prevent it, and was guilty of no neglect, especially in this case, where the property had been changed from real to personal, by the trustee, without the consent of the present *ces-tui que trusts.*

*1573. Because the trustee is not- made answerable for the dinérence between the amount for which the land sold, and the price paid for the negroes purchased of W. H. Gibbes in 1822.

4. Because the decree charges the complainant with the value of the negroes Molly and her child, and interest thereon from January, 1832, when there was no evidence before- the court that the complainant ever consented to their being substituted in the place of the negro Abraham — or that she ever consented to receive them as any part of her interest or right under the deed of 1810 — her possession of them jointly with her husband, during her minority and coverture, and in ignorance that they were purchased with trust money, cannot be construed into such assent.

5. Because the defendant, Givens, knew of the sale of the negro Abraham and sanctioned it by signing the bill of sale as a subscribing witness, and he knew that .Molly and her child were purchased with the money received for him. He was, therefore, guilty of a breach of trust in permitting the sale of the negro Abraham, and afterwards of another breach in permitting Molly and her child, or children, to be sold. to pay the debts of the complainant’s husband, and the decree ought to charge him accordingly.

6. Because if the complainant was rightfully in possession after 1826, of the negroes Molly and her child, by the provisions of the deed of 1810, they constituted only her proportionate part of the negroes originally named, and the subsequent loss of the other ne-groes by death, and the negligence of the trustee, furnishes no reason for deducting the amount of the sales and interest of Molly and her child, from the complainant’s share of the land.

7. Because it is a mistake to suppose that the complainant, or her husband, ever received one cent for the wages of the trust negroes, after the death of Mrs. Givens in 1826.

8. Because the circumstances proved by the defendant show that Rosalinda and her child were purchased with trust money, and they were improperly sold as Margaret Givens’ property.

9. Because the decree is contrary to law and equity, and ought to be reversed.

*158*De Treville,*for complainant.

A. *M. Rhett,*for defendant.

Curia, per Johnson, Ch.

We concur in the decree of the circuit court. It is therefore affirmed and the appeal dismissed.

Harper, Johnston and Dunkin, Chancellors, concurred.