In the Circuit Court of equity for Cheraw District.

Heard before Chancellor Waties.

■ cíase xivi. ■

#### Philip Pledger and Sarah his wife, *vs.*the Administrators of Benjamin David and others.

A widow having children by her deceased husband, and being entitled to a third pai-t of his estate real and personal, and to a real estate of her own, conveyed the whole of her interests in said, estates, to her children, reserving only one third part for her own use during her life; she afterwards married and had other children. The deed is good, and operative, at least as a deed to stand seized to uses, though informal and subject to some technical objections; and though prejudicial to her younger children.

The bill in this case is brought to have a partition of the estate of Benjamin David, and an account of the rents and profits received by the defendants, James Pen-nery and Josiah D avid; to obtain an allowance for the maintenance of the defendants, James, Benjamin, Sarah and Elizabeth David $ and also to have an account of the rents and profits of a plantation, which is claimed by the complainant in her own right.

The only question in the case is, what share of the property set forth in the bill the complainants are entitled to.

It appears that the complainant Sarah was, before her marriage with Mr. Pledger, the widow of Benjamin David, and entitled as such to one third of his real and personal estate 3 also, to a real estate in her own right. But it also appears, that before her present marriage, she conveyed by deed to the defendants James, Benjamin, Sarah and Elizabeth David, her children by her first husband, the whole of her interest before mentioned, reserving only one third part thereof for her own use during her life.

*265It has been contended that this deed is not valid, because it grants an estate in futuro, and puts a freehold in abeyance $ also, that the habendum is repugnant to the premises, the estate in one being a tee simple, and in the other only for life.

I should have been glad if these objections had been well founded, for J understand that by this extraordinary Act of bounty to the children of the first marriage, the children of the second will be unprovided for, and the mother herself will he left without a competent support. But the court cannot for these reasons set ¿side the deed. It is not, indeed, as formal as it ought to have been; but the intention is too manifest to be mistaken, and this will cure any informality. The complainant Sarah plainly intended to convey her .whole estate to her children James Benjamin, Sarah and Elizabeth David, except the use of the third part reserved for her life, and the deed must be considered as a covenant to stand seized to these uses. If so considered, there can be no room for the objection that the freehold in the land is in abeyance, for the covenanter has the seizin of it; and I cannot see any repugnance between the premises and the habendum, for the whole interest, except the portion for life is plainly described and conveyed by both *;*in the first it is expressly said, that *“*a fee simple is intended to be conveyed,’* ¡and in the last it is declared to be to the use of the children and their heirs.

I am of opinion, therefore, that the deed is valid, and that the complainants are only entitled to the use of one third part of the property conveyed by it, during the life of the complainant Sarah; and that the defendants James, Benjamin, Sarah and Elizabeth David, are. entitled to the absolute use of two thirds thereof, and the remainder over in the other third part thereof after the death of their mother. The defendants James Pouncey and Josiah David, must account to ■ the complainants for the rents and profits of this third part. The complai-.«ants are also justly entitled to a reasonable allowance for the maintenance of the defendants^ James, Benjamins, Sarah and Elizabeth David.

JUNE, 1812.

*266it is therefore decreed that a writ of partition do issue, and that the real and personal estate of Benjamin David, deceased, and also the tract of land claimed by complainant Sarah in her own right, be divided and allotted among the parties in the following manner, to wit, one third part thereof to the complainant Sarah during her life, and the remaining two thirds to the defendants James, Benjamin, Sarah and Elizabeth David, in equal shares. It is also ordered, that the defendants James Pounccy and Josiah David, do account before the commissioner for the rents and profits of the whole of the property aforesaid, which have been received by them respectively, and that they do pay to the complainants one third of any balance, which maybe due by them on the said account. And it is further ordered, that the commissioner do report what annual allowance the complainants are reasonably entitled to, for the board, lodging and clothing of the defendants James, Benjamin, Sarah and Elizabeth David. Let the costs of suit be paid out of the shares of the last named defendants.

Thomas Waties.