#### *William W. Iorr and Julia S.*Hodges, *by her next*friend, vs. *Absalom T. Hodges and others.*

1. Certain slaves, by a marriage settlement, were conveyed to a trustee, in trust for the intended wife, until the marriage, then in trust, “to permit the” husband “during the joint lives” of himself and his intended wife, “to have, receive, take and enjoy, all the interest, income, and profits” of the slaves, “ to and for their own use and benefit;” and after the death of the husband, if the wife should survive, then to “assign, transfer and set over,” the slaves to the wife, discharged of any trust; but if the wife should die before the husband, then in trust “to transfer, assign and set over,” the slaves to the issue of the wife, or if none, then “to transfer, assign and set over,” the slaves to the husband and next of kin of the wife, “ in such lots, shares and portions,” as is provided by the statute of distributions.

2. It was held, that the slaves embraced in the settlement were not liable to seizure and sale under executions against the husband. Inquiries, as to his equitable interests, as well as the rights of his creditors, could only be made on proceedings instituted for that purpose.

The case will he fully understood from the following copy of the marriage settlement in question, and his Hon- or’s circuit decree, delivered at *jEdgefield, June Term,*1842.

A. T. Hodges, 1

J. S. Ioor, > *Marriage Settlement.*

Wm. W. Íoor. )

The State op South CaroliNa, — Edgefield district.

This Indenture tripartite, made the ninth day of March, in the year one thousand eight hundred and thirty-seven, between Absalom T. Hodges, of Abbeville, of the first part, Julia S. Ioor, of the second part, and Wm. W. Ioor, of the third part. Whereas, a Marriage is intended to be shortly had and solemnized by and between the said Absalom T. Hodges and the said Julia S. loor; and whereas the said Julia S. Ioor is possessed, in her own right, of a considerable personal property, consisting of seventeen negroes, names and ages as follows : Josey about fifty years of age, Sally about thirty-five, Julian about nine, Ben about three, Caesar about five, Bella about twelve, Juno about thirty, Jackson about nine, Nanny about two, Louisa about one, Edward about twenty-eight, Drama about twenty-six, Margaret *594about six, Edwin about four, Janette an infant, Sire about fifty-five, Joan about thirty-three years of age; and it has been agreed that the said seventeen negroes should be settled upon the said Julia S, loor and the issue of her body, as is herein after provided. Now this indenture witnesseth, that in pursuance of said agreement, and in consideration of the sum of five dollars to the said Julia S. loor in hand paid, by the said William W. loor, the receipt whereof is hereby acknowledged, she the said Julia S. loor, by and with the privity, consent and agreement of the said Absalom T. Hodges, testified by his being made a party to and his sealing and delivering these presents, hath granted, bargained, sold, assigned, transferred and set over, and by these presents doth grant, bargain, sell, assign, transfer and set over, pnto the said Wm. W. loor, all the seventeen negroes above mentioned and described, and the future increase of the females thereof; to have and to hold the said seventeen negroes, and the future issue of the females thereof, unto the said Wm, W. loor, and his heirs and assigns ; in trust, nevertheless, and for such purposes and under such provisions and agreements as are hereinafter mentioned; that is to say, in trust for the said Julia 3. loor, and her assigns, until the solemnization of the said- intended marriage, and from and after the solemnization of the intended marriage, then in trust, that he, the said Wm. W. Joor, his executors, administrators and assigns, shall and do permit the said Absalom T, Hodges, during the joint lives of the said Absalom T. Hodges and Julia S. loor, his *intended*wife, to have, receive, take and enjoy, all the interest, income and profits of the Said seventeen negroes, to and for their own use and benefit; and from and after the decease of said Absalom T. Hodges, if the said Julia S. loor should survive him, in trust, that he, the said Wm. W. loor, his executors and administrators, shall assign, transfer and set over, all the seventeen negroes, and the issue of the females thereof, unto the said -- Julia S. loor, free and discharged from any trust whatever; but if she, the said Julia S, loor, die before the said Absalom T. Hodges, then the said Wm, W. loor will transfer and assign the said seventeen negroes, and the issue of the females thereof, unto the issue of the body of the said Julia S. loor, share and share alike, provided there be such issue; but if the said Julia S. loor die without leaving issue of her body, living at the time of her death, then, and in that case, the said Wm. W. loor will transfer and assign the said spventen *595negroes, and the issue of the females thereof, unto the said Absalom T. Hodges, and the next of kindred of the said Julia S. loor, in such shares, lots and portions, as is provided by the laws of this State, now of force, giving an equitable distribution of the estates of persons dying intestate.

In testimony whereof, the said Julia S. loor, Absalom T. Hodges, and William W. loor, have hereunto set their hands and seals, the day and year first above written.

A. T. HODGES, L. S.J

J. S. 10OR, L. S.]

WILLIAM W. IOOR, L. S.J

The marriage took effect, and the slaves were levied on by the creditors of the husband. An injunction was granted to restrain the sale, which was dissolved by the Chancellor, and this was a motion to reverse the decree.

Harper, Ch. This cause was heard at Chambers by consent. According to the terms of the marriage settlement the slaves in question are conveyed to the trustee, in trust for the intended wife until the marriage, then in trust, “to permit the said Absalom T. Hodges, during the joint lives of the said Absalom T. Hodges and Julia loor, his intended wife, to have, receive, take and enjoy all the interest, income and profits of the said seventeen negroes, to and for their- own use and benefitand after the death of the husband, if the wife should survive, then to “assign, transfer, and set over,” the slaves to the wife, discharged of any trust; but if the wife should die before the husband, then in trust “to transfer, assign, and set over” the slaves to the issue of the wife, or if none, then to “transfer, assign, and set over” the said slaves to the husband and next of kin of the wife, “in such shares, lots and portions” as is provided by the statute of distribution.

The slaves have been levied upori by the creditors of the husband, and the question is, whether the legal estate has vested in the husband, for the joint lives of himself and wife, so as to render it liable to be seized tinder execution at law;

The subject has been Very fully considered, and the cases reviewed, in the late case of *Pyronvs. Mood,*decided *596during the last sitting of the Law Court of Appeals in Charleston. The first case on the subject is that of *Por-cher vs. Grist,*(not reported) in which the conveyance was to trustees, for the joint use of husband and wife for life, to the use of the survivor for life, and after the death of the survivor, to the issue of the marriage. It was held that the property, after the death of the husband, was liable to be taken in execution for the debts of the wife. The case of *Pringle vs. Allen,*1 Hill Ch. 135, was precisely similar. In *Ford, trustee, vs. Caldwell,*3 Hill, 249, the limitation was similar, and it was held that the trustee could not recover against the party to whom the husband had conveyed his life estate. In *Porcher vs. Grist,*it is observed that the statute of uses does not apply to trusts of personal property ; as respects land, if the trust is not ex-ecutory, or if it is not necessary to preserve the trust, that the legal estate should remain in the trustee; the statute executes the trust so soon as the deed is executed, and the legal estate vests in the *cestui qui use.*In personal estate, the legal estate remains in the trustee, until he executes the trust by delivering the possession to one capable of holding in himself or herself, a legal estate in the property, to the extent of the interest intended by the deed to be conferred. It is said that an estate to the joint use of the husband and wife during life, *may,*in order to preserve the trust, not be executed by the delivery of the possession to her husband. But in *Pyron vs. Mood,*it is said that the trustee has a general property, the *cestui qui trust*a qualified one, and when to his qualified right of property possession is added, it is complete to the extent of the interest carved out by the deed. Both are legal estates, but, quoting from *Ford vs. Caldiuell,*it is said that the trustee had nothing to do with the property during the lifetime of the husband. “He had delivered the slave to one who was under no legal disability ; this was equivalent to a conveyance to him for the time he was to possess it.,} The execution of the trust seems to be made to depend on the right to possession and the actual transfer of possession.

Now in this case, I suppose that the stipulation to permit the husband “to have, receive, take and enjoy all the *597interest, income and profits,” of the slaves, entitled him to the possession. This was the direct and obvious method of taking the income and profits. There is no question with regard to the actual possession.

The particulars in which the present case differs from those to which I have referred, are the directions that at the termination of every particular estate, the trustee shall “assign, transfer and set over,” the property to the next in remainder, and in the final event shall assign and transfer it to the husband, and the next of kin to the wife, according to the provisions of the statute of distributions. Though the principles which govern trusts of real and of personal estate are derived from different sources — the latter depending, as is said, on the law of bailments, yet in some respects there is a singular coincidence in the rules which govern them. For example, if the trustee is to receive the rents and profits and pay them over, this prevents the execution of the use. In such case the *cestui que trust*of personalty is not entitled to the possession. In general, I should say that the rules applicable to one kind of estate, in this respect, are applicable also to the other. But with respect to real estate, if there is any act to be done or any function to be performed by the trustee, this will prevent the execution of the use. In this case, there is an act to be done by the trustee. In a final event, he is to make distribution of the property. In *Reily vs.*Fowler, 2 Fearne, 236, where property was given to a woman and her issue, but if she should die without issue, to be distributed by the executor, this act to be done by the executor, was held to tie up the generalities of the limitation to issue, and restrict the first taker to a life estate. Indeed, if when property is conveyed in trust, for the joint use of husband and wife for life, the use is to be executed in the husband so as to render it liable at law to his creditors, I do not perceive what purpose is answered by having a trustee to a marriage settlement. If creditors were compelled to come into Equity for the purpose of making the husband’s interest liable, there are various equities by which their claims might be rebutted.

But still, if the execution of the trusts depends on the right to possession, and the actual possession, I must, ac*598cording to the decided cases, declare it to he so executed in this instance, so as to render it liable to creditors at law. It is said in *Pyron vs.*Mood, that “in Equity, if the purchasers had notice of the trusts, the rights of the wife might possibly be protected.” But if the property be liable at law, I know of no ground on which Equity could interfere. I am bound to follow the law. I am not well satisfied with my conclusion, and wish that it may be revised by an appellate tribunal.

But according to the decision in *Pringle vs. Allen*and *Cordes vs.*Adrian, 1 Hill Ch. 154, and other decided cases, though the injunction must be dissolved, the purchasers at sheriff’s sale must give security for the forthcoming of the property. It is therefore ordered and decreed, that the injunction in this case be dissolved; but that the purchasers of the life estate, in the slaves in question, at the sheriff’s sale, give bond with sufficient security, that the said slaves shall not be carried without the limits of the State, and that they shall be forthcoming at the termination of the life estate of the said Absalom T. Hodges. Parties to pay their own costs.

The plaintiffs appealed from the decree of the Chancellor, and moved the Court of Appeals to reverse the same, and for an injunction restraining the sale of the property,

Because the said A. T. Hodges has no such interest in the property included in the trust deed, as is liable to be sold under executions against him, the legal estate being in the trustee.

*Griffin*Burt, pro. appellants.

*Wardlaw,*contra.

*Curia, per*Donkin, Ch.

This court is unanimously of opinion, that the slaves mentioned in this marriage settlement were not liable to seizure and sale under executions against the defendant, Absalom T. Hodges. Whatever may be his equitable interests, or whatever the rights of his creditors, the inquiry in relation to them can only be made on proceedings for that purpose instituted.

It is ordered and decreed, that the decree of the Circuit *599Court be reversed, and that the injunction, originally-granted by the Chancellor, be made perpetual.

Johnson and Johnston, Chancellors, and Richardson, Evans, Butler, Wardlaw, and Frost, Judges, concurred.

In reference to the two preceding cases, his Honor, Judge O’Neall, delivered the following opinion.

O’Neall, J.

In these cases, I concur in the judgment of the court, by which the motion is dismissed in the first case, and the decree is reversed in the second; but I came to my decision for reasons different from those mentioned by my brother, (Chancellor Dunkin,) in the judgment just read. I still adhere to the doctrine, that a trust, in personalty, is a mere bailment, and that it is executed exactly according to the purposes intended by the donor, and to the extent pointed out in the deed, by the delivery of the possession to the *cestui que trust.*1 know this doctrine is supposed to be quite a novelty by some, but I fancy it will be found to be a little more ancient, and to look a little more reasonable, than may have been supposed, when it comes to be examined. Why was it, that the statute of uses was passed'? Was it not by act of law, to unite the legal title to the possession, and thus to prevent a man from holding and enjoying an estate which was forever to be protected from any *legal*remedy against him *%*The answer is yes! that was the great object of the statute. It executes the use exactly as the Court of Equity would order it to be done, *according to the intent of the parties.*But the statute does not reach personal chattels. There never was any necessity that it should. For, unlike land, the legal title and possession never are separated, unless it be for some qualified purpose, not inconsistent with the general property. So too, personalty passed by word of mouth, accompanied by possession, as well as by writing; but land never did. If, then, personalty depends upon possession, when the property is delivered by the trustee to one capable of holding in his or her owti right, and there is no further act of pos*600session or right to be exercised by the trustee in reference to the period of enjoyment by the *cestui que*trust, what is to prevent that from being considered an execution of the trust *pro tanto?*that is, the bailor, the trustee, has delivered the property to the bailee, the *cestui que trust,*to be held and enjoyed by him or her, until, by the terms of the bailment, the deed of trust, his or her interest is ended. Let me ask — could not the trustee do this by deed ? Every one will say yes. But in personalty, there is no necessity for a deed, possession is enough. Again let me ask, would not equity make a refractory trustee execute his trust, by delivering to his *cestui que trust*the personalty for the term he or she was to enjoy it'? The Chancellors will say yes. If that be so, is not the act of the parties, voluntarily done, just as good as when forced to be done by the Court of Equity *1*These propositions cannot be denied, but the consequences from them are the difficulty. Let us examine them. May not a *cestui que*trust, in possession of a personal chattel, maintain trespass against a stranger for an injury done to it'? Every lawyer will say yes. How, if the title be in a trustee? By virtue of the possession. True, but does that not shew that possession is evidence of right ? But I go further, suppose the trustee was to injure the chattels, shoot a negro, for example, in the possession of the *cestui que*trust, could not the *cestui que trust*maintain trespass against him ? I have no doubt he could, his possession would be evidence of his right, and his damages would be measured by the extent of his equity, as it is called. It would, at law, be the case of a bailee with an interest suing for an injury done to his possession. Unless you thus resolve the matter, the action would be plain, but the reasen why it was given would be *in terra incognita.*

Again, suppose the *cestui que trust*in possession, could the trustee recover from him in trover before his equity, as it is called, his right of possession as I regard it, is ended ? I deny that he could. For to do so, he must shew, not only right of property, but also of possession ; the very deed under which he claims, negatives his right of possession. What is to hinder a law court from regarding and giving effect to the *cestui que trust’s*right of possession ? *601When it is in action, and to be enforced by taking the possession from the trustee, it cannot be done. But when the trustee has done what law could not, but which equity would make him do, how utterly absurd it would be, to allow him to undo the very act done voluntarily or by the compulsion of equity, in a suit at law ! If the *cestui que trust*has thus an ascertained right of possession, must it not be regarded as coming to him from the execution of the trust'? This, I hold, is no new doctrine in *Swann*vs. *Ligon &*Rudd, 1 McC. Ch. Rep. 227, the slave was conveyed for the use of husband and wife for life, after the death of either, to the use of the survivor, and after the death of the survivor, to the use of the issue of the mar-riagethe wife survived the husband, who died, leaving issue of the marriage. She sold, in her lifetime; the issue, the remainderman, filed a bill against her alienee, for the preservation of the property; neither she nor the trustee were parties. Defendants demurred, upon the ground that the trustee was not a party. The Court of Appeals, by Judge Colcock, held he was not a necessary party, *he had performed the trust.*Howl By delivering the slaves to the tenant for life! In *Jones*vs. *Cole,*2 Bailey, 330, the conveyance was to a trustee, in trust for the separate use of a lady about marrying, during life, and after her death, for her children. The court held the trust executed, and the property in the children after the death of tenant for life, by virtue of her possession. In that very case, the doctrine of bailment, as applied to these cases, was first adverted to by Chancellor Johnson, with the concurrence of Chancellor Harper. At the same time, the case of *Watson*vs. *Pitts*was tried, 2 McMull. 298, note. And there, notwithstanding possession in the *cestui que trust,*it was held that the trustee might maintain trespass or trover against a stranger. Why! Because, as bailor and bailee, he or the *cestui que trust*might maintain the action. In *Gist*vs. *Porcher,*and *Pringle*vs. *Allen,*1 Hill Ch. 135, the doctrine of an executed trust in personalty was maintained, and the life estate of the *cestui que trust*sold under execution. The same thing occurred in the Court of *ten,*in the case of *Fogarty*vs. *Hubbell,*3 Hill, 30, and in *Ford*vs. *Caldwell,*Id. 248, in the Law Court of Appeals. After *602such an array of authority and reason, I do not see any propriety in overturning them all, for the sake of sending an execution creditor into chancery to get his money out of some unfettered trust estate. Such a course will be, to give away the meat and keep the shell.

I see, in looking into 2d Equity Dig. 483, sec. 7, that it is there said to have been decided, in *Jones*vs. Langhorn, 3d Bibb. 453, “ Slaves conveyed in trust, are subject to execution for the debts of the *cestui qua*trustthis seems to square very well with our own cases. But it is utterly inconsistent with law to say, that one has an absolute sole right to the possession of personal chattels, and yet the sheriff cannot seize them in execution. The execution simply transfers the possession to the sheriff, with what-, ever right the defendant has, and this he sells. But it is supposed there is some necessity, that equity should superintend the sale, to protect ulterior equities. No such necessity can exist. If there be any danger, let the remain-dermen or trustee claim the extraordinary jurisdiction to protect their interest. I have no idea of cramming every case into equity, on account of the greater convenience of the remedy. We may use a stronger and more direct remedy at law; but in the main, it suits the people much better than the more uncertain and expensive remedy in Equity. It is, however, said, there cannot be a partial execution of a trust. I admit *that*in one sense, but notin *that*in which it is used here. It is true, the trustee cannot partially execute the estate of *cestui que*trust, but, to the extent of his interest, he may execute it. As under the statute, the use for the life of the *cestui que use*is executed, Saunders on Uses and Trusts, 112, 113. So in personalty, possession would have the same effect. The trust for the remainderman abides in the trustee.

So much for the principle which I suppose these cases are to overturn. In the cases themselves, according to the principles w'hich I have maintained, there is no difficulty. In both, the trust is partially for a married woman incapable of acting *sui jut is;*something still remains to be done by the trustee, shewing that the possession' is not absolute in the husband. Both are ante-nuptial settlements. In the first case, the property may be sold by the trustee *603and the *cestui que trusts,*and the proceeds invested in other property. This shews the possession was to be permissive only — a mere tenancy at will, if we can properly use such terms about personalty. In the other case, at the death of each, he is to assign, transfer, and set over, the property to the next one entitled. This, also, qualifies the possession. But it is said that this conflicts with *Ford*vs. *Caldwell.*It does not so seem to me. There the settlement was post-nuptial — the possession was never changed, it was in the husband all along, there was nothing to be done by the trustee for the life of the husband. His pos-sesion was absolute for his life; and when he sold the slaves I do not see how the trustee could recover them from his alienee. So far as he and (he trustee were concerned, the trust was executed, and that was all that cnse decided.