#### *Lewis Jones and Wife vs. Fort, Townsends*& *Mendenhall et al.*

Where personal property is conveyed to a trustee for the use of husband and wife, it is not liable to be seized and sold under a *fi. fa.*against the husband; nor does it make any difference in this respect that the husband is himself the trustee.

The husband’s interest in the property may, in equity, be made liable to the demands of his creditors.

*Before*Harper, Ch. *at Edgefield, June,*1844.

Lewis Jones, Sen. and Elizabeth his wife, and their children, filed their bill, setting forth that William Pou, the father of the said Elizabeth, in January, 1820, executed a trust deed, whereby, in consideration of love and affection for the said Elizabeth, he conveyed to the said Lewis Jones, Sen. four negro slaves, viz; Rachel, Jeffrey, Celia and Clarissa, with their future increase, in' trust for the use of the said Lewis Jones, Sen. and his wife Elizabeth, so long as the said Elizabeth should live, and at her death to be equally divided or distributed to such child or children as she might leave of her body lawfully begotten, and in case there should be no such child or children then living, the said negroes and their increase to be returned and belong to the said William Pou, or his estate, as the case might be. That Lewis Jones, Sen. executed the said deed jointly with the said William Pou, and received the negroes upon the conditions and trusts aforesaid, and the said deed was duly recorded in the office of the register of mesne conveyances, in Orangeburgh district. That Lewis Jones, Sen. had held possession of the ne-groes ever since the date of the said deed as trustee, and for the uses and purposes specified therein, and the females had had increase. That in 1841, Fort, Townsends and Mendenhall recovered a judgment at law against Lewis Jones, Sen., issued a *fieri facias*thereon, and lodged it with the sheriff. That Simeon Christie, sheriff of Edgefield, acting under the said execution, and by direction of Fort, Townsends and Mendenhall, had levied on several of the negroes, and their issue, included in the said deed, and advertised them for sale.

The bill then submitted that the negroes were not liable to be taken to pay the debts of Lewis Jones, Sen. and prayed for a perpetual injunction to restrain the defendants from enforcing their execution against the said negroes, and that they should *51be decreed to be held in trust, free from the debts of Lewis Jones, Sen. for the'benefit of the said Elizabeth for life, and after her death for her children.

The answer admitted all the material allegations of the bill.

*Per Curiam. It is ordered, adjudged and decreed,*That the defendants, Fort, Townsends and Mendenhall, be perpetually enjoined from enforcing, or attempting to enforce, their said judgment and execution, against the negro slaves named and described in the complainants’s bill. And that the injunction for that purpose prayed for in said bill, be granted and made perpetual.

The defendants appealed, on the following grounds.

1. That the deed under which the negroes are held, gives Mrs. Jones no separate estate, and therefore her interest in them vested in her husband.

2. That the husband being himself the trustee, had the legal as well as the equitable estate, and there is therefore nothing to protect the negroes from levy under an execution against him.

*Mazyck*for the motion.

*Curia, -per*Harper, Ch.

I am of opinion that there is nothing in the distinction attempted to be taken between the case where the legal title to the property is in the. husband as express trustee, or in a third person as trustee. In the view of this court, the marital rights of the husband do not attach. The argument is that he is both trustee and *cestui que trust,*and, uniting the legal and equitable estate in himself, must therefore have an unqualified estate subject to executions at law. But such is not the view of this court. It regards the legal and equitable estates as separately existing, and as it would restrain the creditors of any other trustee from making the property liable to the satisfaction of his personal debts, so it will restrain the creditors of the husband. As trustee he has an absolute estate in the property, or, as it is sometimes said, the fee; as *cestui que trust*he has only an estate for the joint lives of himself and wife. The legal estate is exclusively in him as trustee. He takes the equitable estate jointly with his wife. It is true that the wife takes no separate estate, and when the joint income is received, it will be entirely at the disposition of the husband. But this would be the case if another person were trustee and the property were given entirely to the use of the wife without saying to her sole or separate use. The decisions in the cases of *Burnett vs. Rice,*and *Ioor vs. Hodges,*Speers, Eq. 579 and *52593, are that the statute of uses does not apply to trusts of personalty ; but can it be doubted that, after such a disposition of lands before the statute, the legal and equitable estates would remain separately subsisting?

But it is admitted in the case of *Burnett vs. Rice,*that although the property were in a third person as trustee, creditors may come into this court, after exhausting their remedy at law, to make the husband’s interest in it liable to their demands. But *though the*settlement were simply to the use of the wife, giving the husband the control of the income, it is the wife’s property which is settled, and would be regarded as her equitable estate. It is not necessary that the property should be given to her separate use. It would come within the familiar principle, that when it is necessary for the husband, his assignee or creditors, to come into this court to get hold of the estate of the wife, they should not be permitted to do so without making a proper provision for her. The course is to refer it to the master to report a proper provision, in view of all the circumstances; whether she has been already provided for; the circumstances of her husband, herself, and the family.

The creditors in this case might institute such a proceeding; but the court is of opinion that as all the parties are before it, it may proceed to do full justice, and put an end to litigation; that the parties coming to have equity, must do equity.

It is therefore ordered that it be refered to the commissioner to enquire and report what portion of the property in question ought to be settled to the sole and separate use of the complainant, Elizabeth Jones, and the terms of such settlement.

The whole court concurred.