Union, *Pinckney District.*

Heard before Chancellor Desaussure.

case mxti.

#### Joseph Tucker, *vs.*the Executors of Henry Stevens deceased.

A deed of gift of certain slaves was made by a brother to his sister, E. J>. and her heirs knv'uHy begotten; but else stipulated by teigmng the deed, that she would not claim any right to sa.d slaves sr *533■their increase, longer than her own life : and that at her death the said olaves .<nd their increase .Could return to the donor and his heirs, unless she should have ueirs ot her body lawfully begotten ; in which ease, if any of them survived her, the said slaves were to go to such survivors, to be equally div.dcd, ¡x.c. She married and had issue who are iiv.ng. Her husband mortgaged one of the slaves to secure a debt due by h.m.

The limitation over is not too remote. The donee took an estate for hfc, with remainder to her children who in ght survive her.On her marriage the marital r-ghts attached on the property; and there be ng nothing in the deed io constitute a separate estate, the husband’s pledge *:s*good to the extent of his wife’s interests ; but no further. The children and executors of the husband, including these slaves int.be appraisement of'his estate, could not vary the rights.

JUNE, 1814.

Tub object of this bill is to have tbe benefit of a mortgage or pledge of a slave named Peter, made by Henry Stevens in bis life time, to secure the repayment of a sum of money, to wit, SflfO, which Joseph Tucker loaned to him, together with interest.

The defendants admitted the loan of the money, and the pledge or mortgage of the slave in question ; but they state, that they as executors had never •’timed the negro as part of the estate of their deceased father ami testator; and that the slave has always ron. „med in the possession of Elizabeth Stevens, the widow, of the testator, who claims him under a deed from her brother. Tilomas Davis deceased, dated the 24th of June, ITSe, by which several negroes were given to her, ami upon her decease, were to go to her children $ and that her husband had no right to the said negro, nor power to mortgage him : and that the complainant must have had notice of the claim of the said Elizabeth, before- he loaned his money on that security, as it was notorious in the- neighborhood.

A copy of the deed of the 24th June, 1796, under which the defendant claimed, was offered in evidence, and was, after some discussion, received by the court.

By that instrument it appeared, that Tho. Davis for and in consideration of the natural love and affection lie bore his sister, Elizabeth Davis, and in consideration of five shillings, granted ami sold to her and her Irdrs lawfully begotten, certain slaves named in the deed: *534and the- said Elizabeth Davss agreed to bold the said slaves and them increase (hiring her own life 5 and at her death, the said shaves were to return to the said Thomas .Davis and his heirs, unless the said Elizabeth should jeavc asi he.ir or lieii-s lawfully begotten'of tier body, in which case if such heir survived her, the said slaves and their increase should belong after her death, to such surviving heirs to be equally diiided among them.

it was proved that the slave Peter was one of the increase of the said negroes: and it was also proved that the slaves under the deed were in the possession of Elizabeth Davis before he- marriage with Henry Stevens j and several of the witn.cses swore thaf it was known to them, and they believed in ¿he neighborhood, that the slaves were entailed to Mrs. Stevens’ children, but none of them could say whether this was known to Mr. Tucker the complainant. Other witnesses who lived in the neighborhood, knew nothing of the limitation of the ne-groes to the children, under the deed, till recently. One of the witnesses was offered a mortgage of some of th& negroes by Mrs. Stevens, if lie would lend money to her husband ; and lie was present when the mortgage was made to Tucker : but nothing was sstated to Tucker of the. negroes being a separate estate of the wife.

Tlr- slaves included in the deed and their increase, were included in the appraisement of the husband, Mr. Stevens’ estate, by the executors, who are the children of Mr. and Mrs. Stevens.

Mr. Stevens died, leaving' alive his wife and several children, who are still living.

This case was argued beyond the value of the property in question. The deed was not very regularly drawn, but its intent cannot be mistaken, and the intent oí tiie parties must be pursued in deeds as well as in wills, only that the court will not go so far in liberal construction to reach the intent in the, former case, as in the latter. But tiie intent here is plain; the brother Thomas Davis, meant to give his sister, Elizabeth Davis, and phi agreed to accept and hold, a life estate in certain ¡Saves and their increase ; and if she left issue of her *535body at her death, such issue should take the slaves; if not, they were to return to Thomas Da’, is.

The limitation, it was insisted by the complainant’s Counsel, was too remote and void : but upon a careful review of thedeed, I do not think so. There is nota feature in the deed which gives the idea that any limitation was intended beyond the proper boundaries established by law. The limitation is to a person then living, for her life, and to the issue of her body who might survive her *•,*and in case of no such surviving issue, the property was to return to her brother, the donor. The wife of Mr. Stevens then had a clear life estate in the slaves under the deed, and no more. By the marital rights, Mr. Stevens acquired an entire interest in the personal property of which his wife was possessed, and could dispose of the same to the extent of his interests; and he has pledged one of the slaves under the deed to pay a just debt.

But it was insisted, that it was a separate estate in the wife, in which the husband had no right, and over which he had no control.

There is, however, nothing in the deed which marks this property, as intended to be a separate estate in. the wife : There are no express words in the deed which declares that it shall be free from the husband’s control, "and not liable to bis debts ; and there is nothing in the nature of the property whence the court could infer an intent that it should be to the separate use of the wife, as the case of a gift of jewels *r'v*the personal use of the wife would be ; as in Graham *vs.*Londonderry, 3 Atk. 303.

1 admit, that if the court could see any grounds on which to place this property as a separate, estate, the want of technical words, or the want of a trustee, would not prejudice the wife. The husband should be construed a *trustee;*and technical words are not necessary, as is stated by the lord chancellor in Darby and Darby, 3 Atkins, 399. But this is a plain gift of personal property to the wife for her life before the coverture, to which the marital rights of the husband attached on the marriage faking place. The reports in the neighborhood as to *536tliis being a separate estate in the wife, were not brought h°me *° the complainant Tucker; and if they had beer*, that would not have altered the rights of the parties.— Neither can the appraisement of the negroes as the absolute property of the husband's estate, and not merely during the life of the wife, vary the rights of the party and take away the right of the children after the death of the mother : it was a mere mistake. If the law of Virginia differs from our own in any respect, it might have had an influence on tins case, as the deed was executed there; but Í am not aware of any difference bn the points in question, and none was suggested at the bar.

It is therefore ordered and decreed, that the slave named Peter, in the bill mentioned, be sold by the commissioner at public sale, for and during the life of Mrs. *li.*Stevens, the widow of the late Henry Stevens, on a credit of six months from the day of sale; the purchaser to give bond and good security for the purchase money, and for the return of the said slave Peter, to the children of Mrs. Stevens at her decease. And it is further ordered, that if the price which said negro may bring at such sale, be not sufficient to pay the debt due to the c¡ >»«• plainant and the costs of suit, that it be referred to the commissioner, to ascertain and report the balance of the debt and the assets of the estate of Henry Stevens, liable to this debt.

Costs to be paid by the defendants out of the estafo of Henry Stevens.