#### *Loftus C. Clifford and wife*vs. *J. Harleston Read.*

Defendant purchased at sheriff’s sale, the estate of tenant for life in certain slaves: tenant for life died in July, and defendant delivered the slaves to the remainder-man in December: Held, that defendant was liable to account to the remainder-man, for the hire of the slaves, from the death of tenant for life, until they were delivered to the remainder-man.

Dunkin and Dargan, CC., thought the case within the provision of the last clause of the 23d section of the Act of 1789; — Johnston and Wardlaw, CC., that it stood as at the common law.

*Before*Dargan, Oh., *at*Charleston, February, 1850.

Dargan, Ch. By a deed of marriage settlement, bearing date 15 April, 1818, between Samuel Colleton Graves, and Susan McPherson, the latter conveyed to trustees, certain lands and negroes, in trust for the use of the said Samuel Colleton Graves, and Susan, his intended wife, during their joint lives; remainder to the use of the survivor; remainder to the use of the issue of the marriage. The marriage was duly solemnized, and the complainant, Caroline M. Clifford, was, at the death of her last surviving parent, the only surviving issue of the marriage. Susan McPherson, afterwards Susan Graves, survived her first husband, the said Samuel Colleton Graves, and afterwards intermarried with Nathaniel G. Cleary. The life estate of Mrs. Cleary, in the settled property, was liable, and sold for the debts of Cleary, and the defendant, J. Harleston Read, became the purchaser of a portion of the negroes at sheriff’s sale, in the life-time of Mrs. Cleary. He exhibits with the answer a schedule of the said negroes, (which he purchased and *219became possessed of, in April, 1840,) and also of those that remained in December, 1848, when these latter were delivered up to the complainants as remainder-men.

Mrs. Cleary survived her husband, and on the 19 th day of July, 1848, she departed this life, when the right of Mrs. Clifford to the possession accrued, (as the only person entitled in remainder,) according to the terms of the deed of marriage settlement. Mr. and Mrs. Clifford, the complainants, have also entered into a marriage contract, by which all her estate, including her interest in the property embraced in the marriage settlement of her parents, was conveyed to certain trustees, in trust, *inter*alia, for the joint use of the complainants during their joint lives, etc. Why the trustees have not been made parties to a bill for an account of the trust property, I am unable to perceive. Nor do I see how the complainants could have been' allowed to proceed with their case, had the defendant taken the objection. If, however, the trustees would be entitled to recover on the demands now sought to be enforced, it would have been only for the purpose of paying over the amount recovered to the complainants for their joint use; and as the defendant has not thought proper to object, on the ground that the trustees have not been made parties, I will proceed to consider the case on its merits.

The negroes that were in the possession of the defendant, were duly delivered up by him in the December succeeding the-death of Mrs. Cleary, the life tenant, who died on the 18th day of July, 1848. And this bill is brought for an account of the hire and profits of the said negroes, during the time that intervened between the death of Mrs. Cleary, and the time when they were surrendered to the persons entitled m remainder.. The defendant contends, that as Mrs. Cleary died after the 1st of March, he, as the owner of the life estate, is exempt from liability for this account, by virtue of the provisions of the Act of 1789. (P. L. 494 ; *5*Stat. 111.)

At common law¡ the right of the remainder-man to the possession and enjoyment accrued, *eo instantly*upon the death of the tenant for life; and such still is the rule which must prevail, *220except so far as this rule is modified or disturbed by the provisions of the Act. To that Act. as in derogation of the rights of property, I am disposed to give a rigid construction, and not to extend its operation beyond the cases embraced within its provisions, and which may fairly be supposed to have been contemplated by the Legislature.

The first class of cases provided for by the clause, is entirely different from the present. It contemplates a case where the owner of the life estate himself dies, and not where, as in this case, by an assignment and transfer of the life estate, the owner of that life interest becomes a tenant *per autre vie.*Where a person shall die after the 1st day of March, the slaves of which he or she was possessed, whether held for life or absolutely, and who were employed in making a crop, shall be continued on the lands that were in the occupation of the *deceased,*until the crop is finished, and then delivered to those who have a right to them, etc. The Act proceeds to declare that the crops, the product of the labour of such slaves, shall be assets in the hands of the executors, or administrators, subject to debts, legacies, and distribution. It means, by a necessary implication, the debts, legacies, and distribution of the estate of the decedent, the tenant for life. Here is a prolongation of the life estate beyond its natural period, and a substantial value added to it beyond that given by the will or deed which creates it. And to the same extent it is in derogation of the rights of the remainder-man. And I should doubt the constitutionality of this provision of the Act, in reference to estates in remainder that existed and were vested interests at the ratification of the Act. In regard to such estates, would it not have been a violation of the rights of property, and a taking from one person his estate, and giving it to another; and that too without any compensation ? But in regard to estates of this character, created since the passage of the Act, that objection does not apply, „for it would be *consistent wen.*for the Legislature to declare that there shall thereafter be *no*estates in remainder, and that the tenant for life shall in all cases be entitled to the fee. The Legislature has not so declared, and *221of course never will; but it has declared, that under certain circumstances, an estate for life in slaves shall extend beyond the duration of that life, upon which it was made to depend by the instrument which creates it. The object of the Act was to promote the agricultural interests, and the mischief to be remedied was the withdrawal of slaves engaged in agricultural labours, from the possession of the executors or administrators of the deceased tenant for life, after the plans of the year had been definitely formed, and the crops in the course of cultivation. It is easy to conceive of the injury that would result to individuals, and through them to the community at large, by such sudden changes in the possession and control of property, situated as in cases contemplated by the Act. The purpose might have been more justly effected, by giving compensation to the remainder-men, as in another class of cases provided for by the same Act. But in the case of a deceased life-tenant, the law gives no compensation to the remainder-man. This is the case of *Leverett*vs. *Leverett,*(2 McCord Ch. 84,) and *Percival*vs. Herbemont, (1 McM. 59.) The first of these cases has been questioned. If one of these is questionable, the other is equally so ; for they are precisely the same. Each of them is a case where the tenant for life died in possession of the slaves, and the slaves were employed in agricultural labours. It seems to me that it would be difficult to adopt any other construction of this part of the Act, that that which our Courts have given in the cases cited. The language of the Act is, in my judgment, unequivocal. See also the case of *Freeman*vs. *Tomkins,*(1 Strob. Eq. 53.)

The case of the defendant, as I have already remarked, does not come within the provisions of that part of the clause which I have been discussing. But, if it comes under the operation of the Act at all, it comes under the following member of the clause : “ And if any person shall rent or hire lands or slaves of a tenant for life, and such tenant for life dies ,• the person hiring such lands or slaves shall not be dispossessed until the crop of that year is finished, *he or she securing the rent or hire when due.”*

*222It perhaps may admit of considerable doubt, whether the case of the defendant comes even within this provision of the Act. He did not *hire*the slaves from the *tenant for life ;*nor was the ' hire due and outstanding, but he purchased the whole life interest, in the year 1840, at sheriff’s sale, and the consideration was paid in cash. The dispossession of the tenant for life was involuntary. The Act seems to contemplate a *hiring,*by the tenant for life, and a case where the hire is still unpaid. The possession is to be extended on the condition, that the hire is to be secured by the person who has the possession. Whereas, if the hire has already been paid to the tenant for life, or he has had the benefit of it, his estate might be insolvent, and be unable to make good the damages, which the inroad of the Act makes upon the rights of the remainder-man. The case certainly does not fall within the words of the Act, according to their ordinary acceptation. It, however, comes within the mischief intended to be remedied; and a sale by the sheriff of the estate of the life-tenant, may be considered a sale by the life-tenant himself: and an assignment of the whole remaining term may be considered a hiring. And if the consideration be paid in advance for a term beyond the duration of the life estate, the party in possession may be required to *secure*so much of the hire of that year, when the life estate determines, as may be due to the remainder-man. I shall therefore consider the case as embraced within that provision of the Act last quoted.

Considering the case in this point of view, I think it clear, that the defendant is liable to account for the hire of the negroes, from the 18th of July, 1848, when the tenant for life, Mrs. Cleary, died, to the day in December following, when they were delivered up to the remainder-man. I shall not construe the . Act as abridging the legal rights of the remainder-man, further than I am bound to do by the clear import of its language. I shall not presume that the law intended to deny him the possession of his estate, after the accrual of liis rights, without just compensation. More particularly am I constrained to take this view, when I reflect that the policy intended to be subserved l^y • *223the Act, can have its full operation, without the infliction of this glaring injustice. He who holds the life estate, may be relieved from the injury arising from the sudden and unforeseen termination of his possession, and the consequent loss or diminution of his crops, while in the course of cultivation and gathering, consistently with a just compensation to the remainder-man for the abridgement of bis right of possession. If the plain import of this part of the Act was, (as it is in the preceding,) that there should be no compensation to the remainder-man for the abridgement of his rights, as a judicial magistrate I would of course have no alternative but to enforce what the Legislature had enacted. But the phraseology of these provisions is essentially different. In the latter, it is declared that the person who hires slaves from the tenant for life, “ shall not be dispossessed until the crop of that year be finished, *he or she securing the rent or hire when due.”*

The securing the hire is the condition on which the possession is to be prolonged beyond the termination of the life estate. To whom is the hire to be secured ? Not to the original life tenant, upon whose life the estate depends ; for she has already parted with her entire interest for the current year. Is is to be secured to the person who is in the possession, who has hired or purchased from the life tenant, and who is still living ? He is the very party who is to give the security for the hire, and therefore the provisions cannot have been intended for his benefit. The * question is between him and the remainder-man. For whose benefit then is the hire to be secured *1*As it cannot possibly be for the benefit of the party who is required to secure the hire, it follows necessarily, (hat he must owe it to some other person ; either to the original tenant for life, under whom he holds, or to the remainder-man. It cannot be to the original tenant for life, (Mrs. Cleary in this instance,) for she had long before disposed of all her estate in the slaves, and at the time of her death did not have the possession. Besides all this ; considering hex as having hired the slaves to the defendant during the current year, (in which she died,) and the hire to have been outstanding and *224due, when she hired them, it was by a contract which would still be of force after her death, and her executors or administrators would have no right to modify that contract, or to call upon the hirer to give security, when the original contract of hiring did not impose that condition. The law would not, and could not, interpose for the purpose of giving to the contracts of deceased persons, a greater efficiency in the way of securing their fulfilment or payment, than they had stipulated for in their lives. The only alternative construction of this part of the Act is, to suppose that it means to secure to the remainder-man his fair proportion of the hire, during the year in which the tenant for life dies, and the remainder falls in. This, I think, is the plain, and indeed I may say necessary, implication of the words of the Act. And such is the judgment of the Court.

It is ordered and decreed, that the defendant do account to the complainants for the hire of the negroes, embraced in the marriage settlement deed of Samuel C. Graves, and Susan, his wife, and described in the schedule, from the death of the said Susan, on the 18th July, 1848, to the time when he delivered them to the complainants or their trustees. It is ordered that *it be*referred to one of the Masters, to take the account.

The defendant appealed, on the following grounds, viz :

1. That his Honor, the Chancellor, erred in ordering an account to be taken of the hire *of the*negro slaves purchased by defendant, at the sheriff’s sale, as the life estate of Mrs. Cleary; from her death, on 18th July, 1848, until delivered up by defendant.

2. That the Chancellor erred in decreeing that the said negro slaves did not come under the provisions of the Act of 1789, in such manner as to entitle the purchaser of the life estate to hold them free from wages until the end of the year.

3. That the Chancellor erred in decreeing the complainants to be entitled to wages for the said negroes, from the death of the tenant for life, until delivered up by defendant, inasmuch as the said negro slaves were field negroes, engaged in the cultivation of the crop, at the time of the death of the tenant for life, *225and as such should have been decreed to the purchaser of the life tenant’s interest until the growing crop was made, without wages.

4. Because the decree was, in other respects, contrary to the correct construction of the Act of 1789, and to equity.

*DeSaussure*&• *Son,*for appellant.

*Munro, Brewster 6p Dunkin,*contra.

Dargan Ch.,

delivered the opinion of the Court.

The duty of announcing the judgment of the Court, in this case, has been devolved upon me. I have fully discussed the questions, made in this appeal, in the circuit decree, and deem it unnecessary to add anything to the views which I have therein expressed.

It is ordered and decreed that the circuit decree be affirmed and that the appeal be dismissed.

Dunkin, Ch., concurred.

Johnston and Wardlaw, CC.

We concur in the result. Our opinion is, that the case at bar does not fall within the Act of 1789, or either clause of it; but is a *casus omissus ;*and that the rights of the remainder-man stand as at common law.

*Appeal dismissed.*