#### James Rainsford, et. ux. v. Thomas Rainsford, Adm’r. et. al.

A clause in a will directing that the father of two of the legatees should have the use of their property for their education and support until they married or became of age, does not give a beneficiary interest to the father.

A child who after attaining majority remains with his father and aids him in his business, with the view of a joint ownership in the property accumulated, cannot after the death of the latter, raise an account for his services, whore he has accepted a provision under the will of his father, which is more than equivalent to the value of such services.

An executor is guilty of a fraudulent violation of trust, if he wilfully does any thing to obstruct intelligence of the contents of the will from reaching the legatees. ,

*Tried before his Honor Chancellor JOHNSON, at Edgefield, June Term,*1837.

The following was the decree of the Chancellor:

The defendant’s testator emigrated from England to this country about the year 1773, and not long after settled in Edgefield district, where he continued to reside until his death in 1818. He had only two children — Joseph, whom he left in England, and who has continued to reside there. He is the father of complainant, James. The defendant, Thomas, his other son, and who is the father of complainant Esther, he brought with him to this country.

The testator, with the assistance of the defendant, Thomas, by great industry and prudence, from very small means, acquired a fortune, estimated at between §45,000 and 50,000 at the time of his death. By his last will and testament, he gave to complainant, Esther, ten negro slaves by name — these were delivered to her on her marriage in 1833, but she claims the hire or the profits derived from their labor, from the death of the testator to the time they were delivered to her.

The defendant denies his liability to account for hire. In another clause of the will, the testator gave to Mary, another daughter of defendant’s, a legacy of fifteen negroes by name, and in the conclusion it contains the following clause: “and I do hereby appoint my son Thomas Rainsford” (the defendant,) “guardian of the said Esther and Mary, and direct that he shall have the use of the property hereby devised to them, until they come of age or marry, Tor their maintenance and education.” And the defendant *58insists, that haying given to Esther such an education as was common in the neighborhood, and maintained her until her marriage, he is not liable to account for the hire of the negroes; and the complainants, on the other hand, charge that her education was neglected.

It is very apparent that the testator did not intend that the defendant should be held to a strict account of the hire or profits to be derived from the labor of the negroes. The use of the negroes, without reference to its value, is expressly given to him, as a compensation for maintaining and educating Esther. The character and degree of education she was to receive is not expressed, but universal usage will furnish something like a rule on this subject. In providing, for the education of a child, no one with ample means, who placed a proper estimate on the importance and necessity of education, would think they had done their duty without putting it on a footing of equality, in point of education, with those generally who belonged to the same rank and condition in society, and who possessed the same expectations and fortune. A rich parent surrounded by poor neighbors, could not excuse himself to his own conscience if, because they were not able to educate their children, that therefore he would not educate his. In the absence of any standard of education for the different ranks of society, we are bound to suppose that the testator had reference to this general understanding of the community, and the defendant was bound to conform to it, if the means (the income from the labor of the negroes) were equal to the expenses, and if he has neglected it, he must account for hire.

The evidence given on the trial went only to shew generally, that Esther had been as well provided for, and educated by the defendant, as the other young women in the neighborhood, but there was nothing to enable me to judge of the character of the neighborhood, or of the standard of a common education there, nor was there any evidence of the value of the hire of the negroes. I have not, therefore, the means of determining the question as to the liability of the defendant to account. I shall, therefore, direct the Commissioner to enquire and report upon this subject.

The important question in the case remains to be considered. *59In -the 5th clause of his will the testator gives to John Hollings-worth and John Tarrants, certain negroes by name, and #500 in cash, in trust for John Rainsford, his grandson, the son of Joseph Rainsford, then residing in England; provided the said John Rainsford should, within ten years after the death of the testator, remove to, and permanently settle in South Carolina; and the following are the terms of the 6th clause, out of which the question to be considered arises, viz: “I give and bequeath unto my said friends, John Hollingsworth and John Tarrants, the following ne-groes and their increase: Joe and his wife Hagar and their children Nelly, Andre and Nancy, and also $500 in cash, in trust to and for the use, benefit and advantage of James Rainsford,” (the complainant,) “son of Jos. Rainsford, now resident in England, provided the said James Rainsford, within the term of ten years from the time of my death, shall remove to and establish his permanent residence and abode in this State; and it is my will and desire, that if the said John Rainsford and James Rainsford shall not, within the said term of ten years, remove to this State as aforesaid, that the said property so devised to the said John Hollings-worth and John Tarrants, in trust for them, shall be held in trust for the said Thomas Rainsford, (the defendant,) in the same manner, and subject to the same limitations, as the property hereinbe-fore devised to him.” Hollingsworth and Tarrants were also appointed executors of the will, but they both refused to qualify or accept the trust. Tarrants has since died, and Hollingsworth, who is made a defendant, by his answer disavows any interest in the matter, and declines to have any thing to do with it.

In March 1832, the defendant addressed a letter to his brother in England, in which he mentioned the death of the testator, and that he had left legacies to the complainant, James, and his brother John, of ¿£500 or ¿£600 value, each, provided they came to America, within ten years after his decease, and made it their abode. This letter reached its address in June following, and in April 1833, the complainant, James, arrived in this country; at the next sitting of the Court of Common Pleas thereafter, he took the preliminary steps towards becoming a citizen of the United States, and in the course of that year married the defendant’s daughter. *60He states in his bill also, that he has purchased land in Edgefield, and intends to make this State his permanent residence. The defendant has, notwithstanding, refused to deliver up the negroes or pay him the money bequeathed to him. He admits in his answer expressly, that he took no means to inform the complainant, J ames, or any of the family in England, of the death of the testator, or the circumstances and conditions of the legacies, and putting himself on his legal rights, he insists, that he was not bound to give them notice, and that the complainant, James, is not entitled to the legacy, because he did not arrive here within ten year’s after the death of the testator.

It appears very satisfactorily from the evidence, that up to the year 1816, something like a regular correspondence, though at pretty long intervals, had been kept up between «the testator, and his son Joseph, in England, and occasional letters had passed between Joseph and the defendant; and Josejlb, who was'examined on commission, states, that subsequently to the time at which the testator died, he addressed one letter to hiin, and six to the defendant, Thomas. One of these letters was addressed to “Mr. Thomas Rainsford, or Mrs. or Miss Rainsford.” On the back of another was a memorandum, requesting that the post master would inform him what had become of his father and the family. On another was endorsed a similar request of the post' master, minister, church wardens, or overseers, or some other person, acquainted with the family — but he received no answers to any of these letters, and the letter of March 1832, was the first notice that he, or any of the family there, had of the death of testator. The defendant acknowledges in his answer, the receipt of one letter from Joseph, addressed to himself and several other persons, and does not pretend that ho answered it. "This letter, he says, is lost, and that he has forgotten the contents. The evidence establishes too, very clearly, that the defendant kept the family in England ignorant of the death of the testator, and of the provisions of his will, with a view to profit by their not coming to this country within the time limited.

Edward Mays, one of the witnesses, stated that he heard the defendant say, ten or twelve years ago, that he did not intend they *61should know it until after the ten years had expired, and that then they could not get the legacies. To Charles Thomas, another witness, he said that the time had elapsed, and they could not then get the legacy. This was in 1832, and he offered to shew witness a letter which he had then written to them on the subject, and in reference to the propriety, of his not having before given them notice, he said, “he did not care to cut off his nose to spite his face.”

The question then is, whether the defendant, Thomas Rrains-ford, was or was not bound to give complainant notice of the legacy, and of the condition attached to it?

The general rule is, that if a condition be annexed to a legacy and no notice is required to he given, nor any one bound to give notice, and the legatee do not perform it, the legacy is forfeited. This is distinctly laid down by the Lord Chancellor, in Chancey v. G-raydon, (2 Atk. 618,) and by the Master of Rolls, in Burgess v. Burton, (3rd Meriv. 9.) The will does not in terms require that notice shall be given. Was Thomas Rainsfrod bound to give notice?

Jt is a familiar principle of equity, that one who obtains possession of trust property, holds it subject to the trust, and is consequently liable to all the duties and responsibilities of a trustee. The defendant, therefore, by acceptiug the administration, on the refusal of the executors to qualify or to accept the trust, assumed voluntarily all the responsibilities that would have devolved on them if they had accepted, with the addition, if that can be called a responsibility, that he was interested to conceal the facts from the complainant, as the legacy was limited over to him for life, remainder to his children, if the condition was not performed.

The correspondence between the testator and his brother Joseph shews that he was solicitous about the latter’s moving to this country with his family, as a means of bettering their condition'; and the legacies to his sons were obviously intended as a temptation to induce them to come here. He knew that the defendant well understood the means of communicating with them, and he might well reason, that the trustees could obtain information from him as _i<> the means of giving them notice, and that they would act with disinterestedness and give the notice; and that duty became more im*62perative when it devolved on the defendant himself. The testator could not reasonably have calculated, when limiting over the legacy to the defendant, that he was holding out inducements to the defendant, to disappoint what 'he had so much desired to accomplish. There was clearly a moral obligation on the defendant to give the notice, and his silence was a negative fraud. The evidence shews too, I think, a positive fraud. Joseph had written frequently to the defendant to enquire what had become of the testator and his family, and one of these he acknowledges to have received — the probability is that he received them all. Candid answers to these would have directly led to the death of the testator and the circumstances of the will, but no answer was ever given. Now, let us suppose that the defendant had suppressed the will until after the ten years had elapsed, and upon an inquiry directly put, whether there was a will or not, he had been silent — would not that have been a *sufpressio veri,*and equally a fraud, as if he had positively affirmed that there was no will?

It may be said, that the will was of record in the Ordinary’s office, and accessible to the complainant. But the testator never could have anticipated lhat the complainant would come here merely for the purpose of enquiring whether he was dead or alive, and had or had not made a will, and it was as effectually locked up from him as if it had been buried under the Table Rock.

In Chancy v. Graydon, before referred to, the testator left certain legacies to certain of his relations, to be paid on their marriage, provided they should marry with the consent of their father. Some of them did marry without his consent, and claimed the legacies -notwithstanding, on the ground that they had not notice of the condition; but their claims were disallowed, and the Lord Chancellor rests his judgment, not only on the ground that the testator did not impose on the executors the obligation to give notice, but that they took no beueficial interest whether the condition was'performed or bi’olcen; and hence the inference, that if they had taken a beneficiary interest, they would have been bound to give the notice. If a testator will give a legacy to one at a distance, upon a condition of which he is likely never to hear, and cannot therefore perform, and it is limited over to another on tbad *63non-performance, provided he can contrive to keep the legatee in ignorance of it, I know of no rule which will restrain him. But 1 can never give my consent to lay down a rule which will not only defeat the intention of the testator, but hold out inducements to the perpetration of the most abominable frauds; and I put my judgment on the ground that, as the trustee in possession, and entitled to the legacy in the event of the complainant’s not performing the condition,, the defendant was bound to give notice.

By the will, the bulk of the testator’s estate is given to the defendant for life, and limited over in remainder on his death to his children, of whom the complainant Esther is one, and complainants charge in their bill, that the security to the defendant’s administration bond has become insecure and doubtful, and that there is danger of the defendant moving the personalty out of the State.

As the tenant for life, the defendant is entitled to the possession of the property without security. The defendant denies in his answer, any intention of removing the property, or going himself out of the State, and no evidence was offered on the subject. The claim for further security for the administration, and an injunction to restrain him from removing the property, cannot therefore be allowed. The complainants pray also, that the defendant may be ordered to file a schedule of the property limited over in remainder. As remaindermen, they are entitled to this of course, audit will be ordered. The complainants charge also, that a debt due by one Delavigne, to the testator, of about $1000, has been either received and is unaccounted for, by the defendant, or has been lost by his neglect. Delavigne, who has been examined by commission, states that the debt has not been paid to defendant, and that he is unable to pay. This question, however, will more properly arise on exceptions to the schedule which will be directed to be filed, if the complainants think proper to make the exceptions.

The defendant, in his answer, prays an account against his testator, to the amount of about $20,000, which he claims for services rendered in his lifetime.

The proof on the subject is, that the defendant resided with the testator, his father, from his infancy until he was about fifty years *64old and unmarried. That during this period he was subjected to privations and a rigor of servitude, which few would be physically able to bear, and still fewer could be prevailed on to submit to; and the witnesses say, that the testator’s success, in the accumulation of wealth, was the result,principally, of the prudence, industry and perseverance of the defendant; and I have no doubt that the fact was so, but there is not even a pi'etence, that there was any agreement or understanding between them, that the defendant should be rewarded for his services any otherwise than by such provision as the testator should think proper to make for him voluntarily; and the rule is very clear, that if a child remains with a parent, even after he is of full age, submits to his government and receives his protection, his rights and duties are the same as during his minority. He cannot make a voluntary service the subject of compensation. Besides, the defendant and his children are, under the will, entitled to at least fifteen-sixteenths of the whole estate, and this claim comes now with á bad grace — even if allowed to the whole extent, there would be still more than enough to pay the legacy to the complainant, James, and the only effect of allowing it would be to defeat the interest of his children in remainder; and how else would the defendant dispose of it if he had the power?

The bill also charges, that defendant has, since the death of the testator, purchased personal property, consisting principally of ne-groes, with the funds of the estate on hand at the time of the death of the testator; and the complainants pray, that this may be adjudged to be a part of the estate limited over in remainder. This allegation is denied in the answer, and there is no proof in support of it.

It is therefore ordered and decreed: 1st, that the Commissioner examine and report the value of the hire of the negroes bequeathed by the testator to the complainant Esther, from the time of his death to their delivery to her. That he also examine and report the probable amount expended in her maintenance and education, during the same period — what education she did receive, and what was the usual standard of female education in that part of the country in which she resided, for persons of her rank, condition and expectations.

*652nd. That the defendant do, within three months after notice of this decree, file in the office of the Commissioner of this Court, a correct account and schedule of all the property devised to John Hollingsworth and John Tarrants, by the third clause of the testator’s will, exhibited with complainant’s bill, in trust for the said defendant for his life, and after his death, in trust for his children, in the condition in which it now is- — that he do also exhibit and file an account of the money on hand, and the proceeds of the crop on hand at the time of the death of the testator, and if the same has been invested .in property under the powers given in the said clause of the said will, that he do also file an account and schedule of the property in which it has been so invested; and if the said defendant shall have sold or otherwise disposed of the whole, or any part of the property so devised to the said John Hollings-worth and John Tarrants in trust, and invested the same in other property, as authorized by the 7th clause of the said will, that he do exhibit an account of the said sales and a schedule of the property in which the same has been so invested.

•3d. *It*is also ordered and decreed, that the said Thomas Rainsford, the defendant, do deliver to the complainant, James, the negroes Joe and his wife Hagar and their children Nelly, Andre and Nancy, mentioned in the bill, and the issue and increase of the females, if any, and that he do account before the Commissioner for the hire of the said negroes from the time of the death of the testator, until they shall be so delivered.

4th. That the said Thomas Rainsfoi'd do pay to the complainant, James Rainsford, the sum of five hundred dollars, with interest from the 19th day of July, 1819, being one year after the death of the testator.'

flth. That the said defendant, Thomas Rainsford, do pay all the costs of this suit.

The testators will was in the following words:

*“State of South Carolina.*Tn the name of G od, amen. I, John Rainsford, of the District of Edgefield, and State aforesaid, being aged and infirm, but of sound disposing mind and memory, thanks be to God, and being mindful of the uncertainty of human life, and *66desirous of disposing of what property it has pleased God to bless me with, have made this my last will and testament:

In the first place, I give and bequeath unto my grand daughter, Esther Rainsford, daughter of Thomas Rainsford, the following negroes, viz: Mordecai and his wife Dills, and the children of Dills, viz: Ben, Sally, Abraham, Priscilla, Jenney and Mourning, and also their future increase, and the three following other negroes, Nat, Adam and Cassar, to her and her heirs and assigns forever.

Secondly. I give and bequeath unto my grand daughter, Mary Rainsford, daughter of Thomas Rainsford, the following negroes, twelve in number, and their future increase, viz: Jack and Mary, and their children Letty, Lewis, Milley, Jarrett, Temperance, Ralph, Stephen, Frederick, Franklin, and three other negroes, viz: Wilson, Peter, and Geoffry.

Thirdly, I give and bequeath unto my trusty .and well beloved friends John Hollingsworth and John Tarrants, all my lands in this State, consisting of about eight hundred acres, and also the following negro slaves, Namomon, Sanger, Roman, and Sam, and also all the money I may have on hand at the time of my death, one thousand dollars excepted, in trust to and for the use, benefit and advantage of my son Thomas Rainsford, for and during the term of his natural life, and after his death, in trust for the child or children of the said Thomas Rainsford; and if the said Thomas Rainsford should die without leaving any issue living at the time of his death, in trust for the use, benefit and advantage of such person or persons as the said Thomas Rainsford, by his last will and testament, shall designate and appoint; and in default *of such*appointment, to the heirs of the said Thomas Rainsford, according to the laws of distribution in this State. And it is my will and desire, that as soon after my decease as conveniently can be, my executors, hereafter named, shall lay out and invest all the money herein before devised to the said John Hollingsworth and John Tarrants, in trust for the said Thomas Rainsford, in such property as the said Thomas Rainsford may choose, to be conveyed to the said John Hollingsworth and John Tarrants, upon the like uses and trusts as the other property herein before devised to them.

Fourthly. I give and bequeath to the said Thomas Rainsford, *67all my stock of horses, cattle, hogs, and of every other description; and also, all my household and kitchen furniture, crop of every description, unsold at the time of my death, (that part of the crop which may he sold, and the outstanding debts to be considered among the cash on hand, and disposed of accordingly,) to him and his heirs and assigns forever.

Fifthly. I give and bequeath to my said friends John Hollings-worth apd John Tarrants, the following negroes and their future increase, viz: March and his wife Rose and their children, Billy, Lucy, and Sukey, and also five hundred dollars in cash, in gold and silver, and bank notes, in trust to and for the use, benefit and advantage of my grand son, John Rainsford, son of Joseph Rains-ford, now resident in England, provided the said John Rainsford, within the term of ten years from the day of my decease, removes to and establishes his permanent residence and abode in this State.

Sixthly. I give and bequeath unto my said friends John Hol-lingsworth and John Tarrants, the following negroes and their future increase; Joe and'his wife Hagar and their children, Nelly, Andre and Nancy, and also five hundred dollars in cash, in trust, to and for the use, benefit and advantage of James Rainsford, (son of Joseph Rainsford, my son,) now resident in England, provided the said James Rainsford, within the term of ten years from the time of my death, shall remove to and establish his permanent residence and abode in this State. And it is my will and desire, that if the said John Rainsford and James Rainsford shall not, within the said term of ten years, remove to this State as aforesaid, that the said property so devised to the said John Hollingsworth and John Tarrants, in trust for them, shall be held in trust for the said^ Thomas Rainsford, in the same manner and subject to the same limitations, as the property herein before devised to him.

Seventhly. It is my will and desire, that the said Thomas Rainsford shall have the most free and perfect use of the property herein devised to his use, and if he should be desirous of selling and disposing of the said property, or any part thereof, he shall be at liberty to do so, and give titles in his own name, provided he invests the proceeds in such other property as he may choose, to be *68settled according to tlie provisions of this will. And it is tny further will and desire, that the said Thomas Rainsford shall not he accountable to his trustees for the rents, issues and profits of all or any part of the property herein devised to him, the increase of the negroes excepted. And it is also my further will and desire, that the children of the said Thomas Rainsford, after his death, shall have the said property freed from all manner of trust and limitations whatever.

Eighthly. It is my further will and pleasure, that if the said Thomas Rainsford should die, leaving other children, besides Esther and Mary, that the said Esther and Mary shall.have no more of the property herein before devised to their father than may be sufficient to make their shares equal to the distributive shares of such other child or children. And I do hereby appoint my son Thomas Rainsford, guardian of the said Esther and Mary, and direct that he shall have the use of the property herein devised to them, until they come of age or marry, for their maintenance and education.

Lastly. I do hereby appoint my said friends John Hollings-worth and John Tarrants, executors of this my last will and testament.

The defendant appealed from the decree, and moved to reverse it, on the following grounds:

1. As to the profits and hire of the property bequeathed to Esther.

The defendant maintained that the testator entrusted to him a discretion as to the maintenance and education *of his*daughter, and gave to him the use of this property without reference to its value: that no account could be exacted from him, without shewing that this discretion was abused, and that into the inquiry as to alleged abuse, the habits, manners, and opinions of tho testator, and of this defendant, as known to the testator, necessarily entered: so that such maintenance and education, as from these considerations, it appeared tho testator expected, should satisfy the will, although they may have been below tho standard which prevailed as to other *69persons in the neighborhood óf the same wealth, but of different habits, manners and opinions.

2. As to the legacy to James Rainsford.

The defendant maintained, that the legacies to James and his brother, were inserted in the will by the testator, not as temptations to induce them to come to this country, but as temporary provisions for them in case they should come, made in conformity with the expectations raised by his letters of invitation. That the testator did not expect the defendant, or his executors, to give notice to the legatees. That the defendant was not, as administrator or remainderman, bound to give notice, and that a breach of courtesy or brotherly kindness, did not constitute fraud.

3. As to defendant’s claim upon the estate of the testator, the defendant maintained, that an account should have been directed to ascertain what share rightfully belonged to the defendant, independent of the-will, in the property held by testator and himself, at the time of the death of testator, or to ascertain what reasonable sum defendant should have as a compensation for his services, in the acquisition of said property,

*Wardlaw, Wardlaw*& *Carroll,*defendant’s solicitors.

*Bausltett,*complainant’s solicitor.

Johnston, Ch.

It is the opinion of the Court, that the first ground of appeal cannot be sustained. I think the Chancellor might have gone further than he did. The true construction of so much of the 8th clause of the will, as relates to the question presented by this ground is, I think, that the testator intended to give Thomas Rainsford no beneficiary interest in the property bequeathed to Esther and Mary Rainsford, but simply the custody and control of it during their minority, for the purpose of educating and maintaining them.

The third ground is also untenable. Without giving an opinion on the principle advanced by the Chancellor, that he who labors for another on a mere expectation that provision will be voluntarily made for his reward, is not entitled to raise an account for his services; and without resorting to the rule laid down by him, that a *70child who, after attaining majority, remains under the protection and government of his parent is, as to his rights and duties, as if he was still a minor, a rule, perhaps not of unusual application: it is enough to say, that this defendant, as appears by his answer, did not, until his father’s death, consider his services as raising a pecuniary obligation against the father, but as entitling him to a joint interest and ownership in the property accumulated. But this right is inconsistent with the will under which he claims. Having taken under the will, he cannot take against it. Besides, viewing his claim as a debt, it is sufficiently certain that it is more than paid by his legacies.

The Court is also of opinion that the second ground of appeal must be overruled.

I do not, myself, think that there was any official obligation on the executors and trustees appointed in the will, to give notice of the legacies; nor that there was any obligation on Thomas Rains-ford, on the score of the property being limited over to him, to extend notice to those interested, to defeat him; nor do I think the union in himself of trust and private interest, in consequence of his administering with the will annexed, subjected him to any such legal duty.

His duty, under the will, was to give it that publicity directed by the laws, by producing it to the Ordinary, where by law it was to be deposited and recorded for the information of all concerned. It is incumbent on those interested under wills, to take notice of all that appears upon the face of them, when thus produced: as is apparent from those cases in *which*it *has been held*that legatees must take notice of the conditions annexed to their legacies. Their being obliged to take notice of the conditions, is only a consequence of their obligation to attend to the bequests themselves, to which the conditions are annexed. This principle of course cannot apply to secret trusts, or conditions not ajipearing in the will. As to these, there may be an obligation on the executor to disclose them.

In expressing these opinions, I have no authority to commit my brethren for or against them; nor is it necessary to determine any thing on this point.

*71The Court is unanimously of opinion that an executor is not only bound to produce the will in the proper tribunal, but that he is guilty of a fraudulent violation of trust, if he wilfully does any thing to obstruct intelligence of its contents from reaching the legatees; or with a fraudulent intent refuses to answer any fair and reasonable inquiries, where his answer would naturally lead the legatees to a knowledge of their rights. The least concealment with a view to defeat the trusts, is a violation of trust. Now, when Thomas Rainsford received his brother’s letter, inquiring about his father, he must have been aware that his giving a true answer,.that he was dead, would lead his brother to inquire whether he left a will, and what were its provisions, (since if no will was left he would have been entitled to a distributive share of the personalty;) and that the discovery of the provisions of the will, by his brother, would naturally reach his sons through him. To return no answer, therefore, to his brother, was obstructing an ordinary channel of intelligence, to the prejudice of his *cestui qua trust.*The evidence leaves no doubt that he saw this fully; and that his intention was to conceal, with a view to defraud his nephews for his own benefit.

It is ordered that the motion be dismissed.