#### Lattimer and others, *vs.*Robert Elgin and wife, and Lewis Gantt.

*cXsr.*vx.

*Abbeville, Ninety-six District.*

Present Chancellor Desaussuhe.

Tenant for life of personal estate, who made declarations that he would carry off the property in dispute, obliged to give security for its forthcoming. — The lex loci is to govern cases which arise abroad. — The issue of female slaves, do not, by the law of Maryland, go over to the remainder man, but becomes the property of the tenant for life. — A widow about to marry, settles her interests in her former husband’s estate, with the knowledge of her intended husband; it is valid.

FEB’Y. 1809.

The bill was filed in this case to obtain security for'' the forthcoming of certain negro slaves and their issue, who were in the possession of the defendants, and who were claimed by the complainants, after the determination of the life estate, which Mrs. Elgin had in them.

The cause came to a hearing, and the court, after hearing arguments of counsel, delivered the following decree:

The. bill in this case charges, that Benjamin Lat-timer, late of Maryland, died intestate, seized and possessed of a considerable estate in Maryland. That he left a widow' and children, and that the said widow’, Cagy Lattimcr, being afterwards about to marry again, executed a deed of gift, dated the 18th of June 1785, by which she granted and transferred to her children, (the present complainants) all her right, title and claim, to the third part of her husband’s estate, but reserved to herself the use thereof, until her death. That on or about the day of • letters of administration of the estate of Benjamin Lat-timer deceased, were granted to his widow Cagy, who *27iook the personal estate into possession. That shortly alter the widow intermarried, with the defendant, Robert Elgin: who by his marriage became entitled to the ad*ministration;*and accordingly made a dividend, reserving to himself, as the thirds of Cagy his wife, the following property: Daniel a negro man, and Phebe a woman slave, who has since had increase, Lawrence, Sylvia and *Anthony;*Nell, another female slave who has since had issue, George, Frank and Sabra; and Daphne another female slave, who has since had increase, two children whose names arc unknown. That the said R. Elgin to deprive the complainants of the said property, removed from the state of Maryland to this state, and brought with him the said property as his own absolute estate, and he has sold the negroes, Daniel, Daphne and her children to a certain Louis Gantt. That the said Cagy is aged and infirm, and at her death complainants will be entitled to the said property ,• but the complainants fear that the defendant Robert Elgin will waste the said property and wholly dispose thereof. The hill prays si discovery of what the thirds of the property were, to which Cagy Elgin was entitled from the estate of her first husband Benjamin Lattimer, and an injunction to stay waste, and for a no exeat to restrain Robert Elgin from leaving the state, with the property, as complainants allege ho intends. This bill was supported by an affidavit, whereupon one of the chancellors issued an order for ane exeat and injunction, to remain in force until the further order of the court.

The defendant Robert Elgin filed an answer, wherein he admitted the facts generally, and more particularly that the defendant retained as an equivalent lor what lie was entitled to in right of his wife, as her part of said estate, two negroes, Thebe and Nell, and a few other inconsiderable articles. But the answer denied that defendant retained miy other negroes of the estate of the said Benjamin Lattimer, as part of his wife’s property of said estate. The defendant denies that he removed, from the state of Maryland to this state, with an intention to deprive complainants of said property or any *28part thereof. The answer admits that defendant sold to Louis Gantt, two negroes Daniel and Daphne, but denies that tlicy were any part of the estate of Benjamin Lat-timer: and a negro Frank to a Mr. Miller. That he has in his possession five prime negroes, viz. Lawrence, George, Sabra, Sylvia and Anthony, who together with Frank are the issue of Phcbe and Nell, born after the division of said estate. That the said Cagy Elgin is old and iufirin; but denies that after her death, the said complainants will be entitled to the said negroes, or any part thereof. That the said defendant never attempted to waste or dispose of the said property, so as to deprive the said complainants of the possession thereof.

A certified copy of the deed of gift, recorded on the 18th of June, 1785, by Cagy Lattimer, in Maryland, referred to by complainants, was produced by them, on the trial, and admitted by the defendant. It appears that Cagy Lattimer executed the same, in consideration of the natural affection which she bore her children, to whom she conveys her rights and interests in the estate of her late husband, reserving a life estate tisercin to herself. The inventory and appraisement filed by defendant, as an exhibit, appears to have been made by Cagy Lat-timer, the widow, on the 12th of May 1785, in a very regular manner, and included the negroes, Jude, Phebe and child, Beit, Neil, Sylvia, Sabra, Sila and John. The distribution of the estate was made on the 26th of October 1789, as stated by the defendant in the answer, and not contradicted. It was proved at the hearing, by they\vit-ncsscs who -were sworn, that the defendant Elgin was informed by Cagy Lattimer, previous to the marriage, that she intended to make a conveyance of the rights and interests which she had in her deceased husband’s estate, to her children; and that he was satisfied therewith. Also that ho hath since declared he would sell the negroes and put the money in his pocket; and that the children might look for their relief where they could.— That the defendant Elgin is poor, and has very little property besides that in question. Thai in the settlement of the estate, the negroes were allotted to the heirs for their *29respective proportions; and that i’liebe and Nell, were the two negroes of the estate allotted to Mrs. Elgin as her proportion. The interposition of the court to protect the rights of persons entitled to personal estate, on the death of an intermediate person, who has the enjoyment for life, from being* squandered away, is a well established .branch of its jurisdiction, and the system of equity would be very imperfect without it, for there is no remedy at law in such cases. It is analagous to the doctrine of waste, in relation to real estate, but it also rests on the general foundation of equity. See 2d. Fearn, 34, (where 2d Freeman, 20G, is cited.) It is there clearly laid down, tliat upon a devise of goods to A. for life with remainder to B. that it was a good devise to B. and that he might exhibit his bill against A. to compel him to give security, that the goods should be forthcoming at his decease; and that it was the same, whether the goods or the use of the goods, were devised for life: So iii 1 P. Wins. 1, in the case of Hyde *vs.*Parrot, lord Somers decided the same point. The later cases have been satisfied with requiring an inventory to he signed by the devisee for life, to be deposited with the master in equity, which lord Thurlow observed was more equal justice; but he immediately adds, “There ought to be danger to require securitythereby plainly agreeing, that in a case where there was danger, the court would require security.* And even in the case of Foley, cited and relied upon by the defendant’s counsel, from Fearn, 42, (i, Bro. Ch. Cases 2"4,) the court admitted that the ultimate devisee of a chattel might come to the court to protect the property from destruction, by tenant for life; and Mr. Fearn, who was a great lawyer, lays it down expressly, that the court is well warranted to give protection in such cases.

The court considers the first taker, as a trustee for the benefit of those having subsequent interests. See 2 Fearn 46, *7,*8. Now in the case under consideration, *30the complainants have sworn, that there is danger of th£ property in dispute being squandered and put out of their rcac}j. an¿ they have supported their apprehensions, by proofs of the declarations of the defendant Elgin, that he would sell the property, pocket the money, and leave the children to seek their *redress;*and this declaration the witness swears was made, in relation to all the negroes indiscriminately. This alone would make out' a reasonable case of danger, to induce the interposition of the court — And to this may be added, the defendant Elgin’s Shaving withdrawn the property from the natural tribunal of the parties, which was Maryland: For though ha swears he did not remove with intent to defraud complainants, and I am satisfied with that, yet the facility of such removals, coupled with his subsequent declarations, furnish strong grounds for a reasonable apprehension, and consequently for the interference and protection of this court. But it has been argued that this is the case of a gift, from a parent to children, to take effect after her death, and that it is so harsh, indecorous, and improper, for children to demand security from their parent, that the court will not countenance it under such circumstances. It is true that this is a gift from a parent *;*and I hope I shall never see an instance in which the cupidity of children shall subdue their filial piety so far as to apply to any court for protection against the acts of the parent, who hath made a gift of property to them, reserving a life estate. There are cases in which it is indecorous'to be apprehensive of wrongs, and to which it is dignified to submit, if they arc infiicted. But in this case the parent has married a stranger, and thereby devolved her rights and authorities to him, and he is not entitled to that veneration and forbearance, especially when ho actually threatens to waste the property in question. The deed is expressed to be in consideration of the natural love aud affection of the donor to her children. This is a high consideration, and the rights under this deed are entitled to all the protection,, given ip cases of bequests.

*31'We come now to the consideration of the second /question: What should be the security ordered to he given 'for the forthcoming of the property ? This question depends upon the extent of the property to which the complainants will be entitled on the death of Mrs. Elgin. There is no doubt about the female slaves Phcbe and Nell. It is proved and even admitted that they were the negroes allotted to Mrs. Elgin, and for their . forthcoming, if living at the death of Mrs. Elgin, security must be given.

But the question most contested is, whether the ne-groes who are sworn to have been the issue of Phcbe and Nell, born after the deed and after the division of the estate, arc the property of the complainants under the deed, for whose forthcoming .after the death of Mrs, Elgin, the defendant Robert Elgin should be bound to give security? It is contended for complainants, that these negroes should go with their mothers, by operation of the *deed;*that it was evidently the intention of the mother, who was the donor, and that her intention should prevail at all events. And that this is conformable to the rule of law, which would give the issue to the remainder man. For defendants it was insisted,,that the rule of law was in their *favor;*for in leases for years, of stock, the young ones proceeding from them, during the lease, belong absolutely to the lessee as profits arising and severed from the principal; and the text quoted from 3 Bacon 391, is to that effect: And the rule, it was argued, would be more forcible as applied to negro slaves, than to cattle or other *stock;*on the principle of humanity in keeping the parents and children together,* and in giving an interest in the children to the intermediate tenant, who has the care of the females when pregnant,- and their support after delivery, and the nurture, of the young ones, long useless .and always chas’gcablc.

There is great force in this *reasoning;*but there are other considerations of great importance to be brought into view when a case arises, under the laws of this state — But this case does not belong to our law. It arose in Maryland, and must be decided by the law of lh at state.

*32With respect to the intention of the donor,in this cage, there is some force in the reasoning of the counsel ^(}1, comp];i[nantg5 that it was probably the intention of the donor to give all her rights, including the increase, to her children, reserving only her life estate j and if this intention had been expressed, or if it resulted by any necessary implication, it would certainly have controlled the general law, whatever that .may be. But it does not appear to be clearly expressed, or necessarily implied by any words in the deed. The rule of law must therefore he applied to this case. What that rule is in this state, is of n.o importance in this case, (and there is no necessity to give any decided opinion,) — For the parties were inhabitants of Maryland, and the deed was executed there. The law of Maryland must therefore govern this case, according to the well known maxim, that the lex loci of the parties and of the transaction must prevail. Wo are now therefore to inquire what that law is ? The only light now before the court on that subject is, a report cited by the defendant’s counsel of a case from Haywood’s hook of adjudged cases in North Carolina, in which the law of Maryland on this point is incidentally stated. The complainant’s counsel, without furnishing any evidence of the law of Maryland, insists that this is not sufficient evidence of that *law;*but upon the whole, I am satisfied with this evidence of that la\y, for Mr. Haywood, who has stated .the la-w of Maryland, was a respectable judge, and he informs us of tiie source of his knowledge. He informs us in page 235 of his book of reports, that it is the settled law of Maryland, that negro children, born of a mother given to A. for life, and after bis decease to B. in the lifetime of A. do belong to A. unless the increase are also given over by cxpi'css words. And that one of the most eminent lawyers in Maryland had given it as his opinion, that this was so dearly the settled law, that the question would not now bear an argument there. Taking this to be the Saw, it applies to and is conclusive of this-case j for here is a life estate in Mrs. Elgin, and after her death, the negroes are to go over to her children j l%eve are no express words giving the. increase, during *33the life estate, to her children, nor no words of necessary implication: consequently, by the law of Maryland, the increase goes to Mrs. Elgin as the tenant for *life;*and the complainants, having no title to them, cannot require security for their forthcoming.

*

 See 2 Fearn, 35. 3 P. Wms. 336. *2*Atk. 321, and 1 Brown Chanc. Cases, *279.*

It is therefore ordered and decreed, that the bill be dismissed as to all the negroes except Phebe and Nell. That with respect to those two negroes, the defendant Robert Elgin do give bond with security to be approved by the commissioner in equity for their forthcoming and delivery to the complainants, if the negroes should be living at the death of Mrs. Elgin. That the bond be taken in the sum of eight hundred dollars. That the ne exeat be now dissolved *;*and that the security heretofore given by defendant under the injunction order of this -court be discharged on Robert Elgin’s complying with this decree: and that the defendant do pay the costs of this suit. — There was no appeal.