#### *Simon Verdier et al.*vs. *Wm. Youngblood.*

Bequest of personalty to J. S., for life, *"*provided, nevertheless, that the same shall in no wise, and by no means be made liable for, or subject to any of his debts, contracts, or agreements, but the same shall remain in his possession, and for his sole and only use, benefit and behoof, for bnd during the term of his natural lifewith remainder “ from and after his death.” *Held,*lhatM. S’s. life estate was subject to his debts, and that it passed by his assignment, undor the insolvent debtors’ Act. (a.)

*Before*DeSaussure, Ch., *at*Charleston, *April,*1831.

DeSaussure, Ch. The complainants are the assignees of' the defendant under the insolvent debtors’ Act, and they claim to subject to his debts a life estate in certain household furniture and negroes, bequeathed to this defendant by his deceased wife. By a previous marriage settlement, she was authorized to make a will, and she accordingly bequeathed the property in dispute to her husband for life, -“provided, nevertheless, that the same shall, in no wise, and by no means be made liable for, or subject to any of his debts, contracts or agreements, but the same shall remain in his possession, and for his sole and only use, benefit and behoof, for and during the term of his natural life.” The testatrix, in bequeathing the remaining interest, expressly directs that the negroes are to be delivered to the residuary legatees, “from and after the death of her husband.” The defendant qualified • as the executor of this will, and it appears, that the debts have all been paid off, that the other legacies provided for have been delivered, and the defendant is now in possession as legatee under the will. It further appears, that ah assignment, under the insolvent debtors’ Act, has been made by the defendant to -the complainants, of his interest in the property, if the same is subject to his debts. And the question now is, whether the life estate of the defendant is subject to his debts; or, in other words, whether the proviso to the life estate is void *1*It is a principle of law, well settled both by reason and authority, that .estates, known to the law, cannot be *221stripped of their essential attributes, at the mere dictates of caprice. A proviso that tenant in tail shall not suffer a recovery, or that tenant in fee simple absolute - shall not alien, has been always held to be contrary to law and void. The same course of reasoning which led to these conclusions, would equally well prove that the law cannot recognize an estate in one of full ■ age, whicl# would no’t be subject to his debts, contracts or engagements. All the estates which are limited under marriage settlements, so as not to be subject to the debts or engagements of a husband, are of a different nature, and stand upon a foundation entirely different from that now before the Court. But it has been urged, tha,t the case of *Lynah*vs. *Lynah,*lately decided by the Court of Appeals, is conclusive, as to the point now in controversy. In that case, it is obvious, that thé question was quite distinct from that now presented. There a testator bequeathed to his son, and in case any of his creditors should attempt to take his estate in execution, then it should immediately cease in the tenant for life, and pass over to the remainder-man. It was a mere question, whether the devise over was good; and, as the event on which it was limited, was not •against law, the Court could not prevent the devise from taking effect. But, in the case under consideration, there is a direct instruction, that the estate for life shall continue until the death of tenant for life, and during that continuance, it is shorn of what the law considers its essential attribute. By the very words of the will, the executory bequest cannot take effect until the defendant’s death, and thus an estate would be created inalienable in every respect, and incapable of being bound in any way by the act of any individual whatsoever. A proviso producing such a result, is -against law, repugnant and void.

It is, therefore, ordered and decreed, that the defendant deliver to the complainants the property bequeathed as aforesaid, together with the issue of the females. That the Commissioner of Colleton District, do, thereupon, sell, after proper notice, the life estate of the defendant in the same for cash, or on such credit as the creditors may think proper. That from the pro*222ceeds, the assignees shall, in the first place, be allowed their costs and fees of counsel, the balance to be applied to pay the defendant’s debts, according to the provisions of the insolvent debtors’ Act. That the complainants have the benefit of the usual process of this Court by attachment or otherwise, against the defendant, and all others who may have gotten possession of any of the property during the -pendency of this-suit. That as soon as a sale may be effected as aforesaid, the assignees do file a schedule in the- Registry of the Court, setting, forth the persons to whom the property is sold and delivered, in order that the parties entitled to the estate after the death of the defendant,, may have a speedy remedy in case of any effort to eloign them by a purchaser; and, lastly, it is ordered, that the defendant pay the costs of suit.

The defendant appeared, and moved to reverse the decree, on the ground, that the property bequeathed to him, was not liable, and could not be disposed of for the payment of his debts.

(a.)

**Vido *Heath*vs. *Bishop,*4 Rich. Eq. 46.

*Per Curiam.*

We concur with the Chancellor, for the very satisfactory reasons stated in the decree; which is therefore affirmed, and the appeal dismissed. Costs to be paid out of the fund.

Johnson, O’Neall and Harper, JJ., concurring.

*Decree affirmed.*