*Orangeburg.*

Heard by Chancellor Desaussure.

jSss XliVIII.

#### J. Stroman and wife, (late Snell,) *vs*. Charles Rottenbury and wife.

A person holdfog slaves in trust, or for the use of another, is bound to account for the actual profits of their labor ; — and if he does not, the commissioner will be justified in charging’ him With the usual rate of hire.

A deed by a parent, providing, in consideration of love and affection, for his beloved grand-children by his daughter, comprehends only the grand-children then born; and not others bom afterwards.

JUNE, 1812.

. The complainants charge that a certain *3*apob Burger, (now deceased,) did in his life time execute a deed, an the day of ——~1792, whereby, in consider* *269lion of the love and affection he bore to his beloved grand-children by his daughter Catharina, and *íor*divers other good causes and considerations, he gave, granted and confirmed to his said grand children, three negro slaves, to wit, Ciesar, Nancy and Seely; to be delivered after his decease by his executors, into the hands of his daughter Catharina, for the use of her said children ; to have and to hold to and for the uses of the said grand-children, &c. The deed was proved by the subscribing witness on the 5th of October 1792, and recorded on the 5th of February 1794.

The bill charges that the said Catharina is the mother of the complainant, wife of J. Stroman : — and that at the time the said deed was executed, the complainant and her brother Jacob Snell, were the only grand-children of the said Jacob Horger by his daughter Catharina. That on the death of their father, their mother intermarried with Charles Rottenbury, by whom she had other children :• — That the said negroes were delivered after the decease of their grand-father to their mother, and her said husband Charles Rottenbury — and they have increased to the number of eight, and have been kept and employed, and the profits of their labor received by the said Charles Rottenbury. That the complainant has applied to the said Charles Rottenbury for the proportion to which she was entitled, and for an account of the rents and profits; with which he has declined to comply.

The answer put in issue the points made by the bilk. At the hearing of the cause, the complainant produced in evidence the deed mentioned in the bill j and the last will and testament of Jacob Horger was offered in evidence by the defendant. It was dated the 3d of-April, 1791, and made various dispositions of the testator’s property, among his wife and children, including his daughter Catharina. Also a codicil to the said will, dated the 9th January, 1793, by which the testator declares that the legacy given by him to his daughter Catharina, shall go to the children of the said Catharina, and not to her : and also, that whatever gift he has given to th6 *270said Catharina by any writing, he now bequeaths tho same to the children of his said daughter.

It was agreed that the deed in question was executed when the daughter Catharina had but two children, Jacob Snell and the complainant, who is the wife of John Stroman: that she afterwards married the defendant, Charles Rottenbury, and liad issue by him. After the death of the testator, Mr. Horger, the executors delivered the negroes mentioned in the deed, to Mrs. Rottenbury, and she atfd her husband have had the use of them for many years. Challes Rottenbury purchased from Jacob Snell, one of the two children of Catharina, his share in the said negroes for *$*250, hy deed, dated 26th July, 1811.

It had been referred to the master to examine the-accounts between Stroman and wife and the defendants, relative to the said negroes, and he had reported that the parties having produced no accounts when summoned to attend him, he had made a valuation of the annual hire of the negroes, for five years, previous to the 1st o,f March, and had allowed $42 85 per annum for each of the full grown hands, amounting to *$ 857*10, the half of which sum being $428 55, is due from Charles Rot-tenbury and wife to the said John Stroman.

On first taking up of this cause, the counsel for defendant did not object to the rights of the complainants, and had no objection to the partition of the negroes, but they complained that the report of the commissioner was made up without sufficient evidence; and that too much was allowed for the labor and hire of the negroes : — And they insisted that where a party held negroes, involuntarily as a trustee., he should not be made chargeable for hire and labor at a' supposed rate, but should be held accountable merely for what had been actually made, however small that might he. They afterwards said, that Rottenbury and his wife had had doubts whether their children, though born since the making of the deed, were not entitled to equal shares under the deed. The commissioner, however, stated, and his statement was acquiesced in, that when the parties attended before him *271OR the order of reference, the defendant produced no accounts or witnesses, and did not allege that he had *any;*and when the complainant produced a witness to prove the ages and qualities of the slaves, so as to establish their capacity for labor, the defendant Charles Rotten-bury admitted the statement made by the complainant to be correct, and that he need not swear his witness: — . whereupon he made a report on the fair and usual hire of such negroes.

I cannot hesitate to confirm this *report;*for the defendants filed no account — they produced no witnesses — • they furnished no data to guide the commissioner — and he was obliged to resort to the course he pursued, or he could not make any report at all.

After some time spent in the discussion of the cause* the defendants’ counsel made a new ground, that the donor’s bounty ought not to be confined to the two children, who 'Were born at the time the deed was executed. That by a sound interpretation of the deed, the donor must be considered as having had in view all the children of his daughter Catharina, and not those who were in existence at the time of executing the deed.

Some reliance was placed on an obhcure clause in the codicil to the testator’s will, to shew that the testator meant the negroes comprehended in the deed of gilt to go to all his grand children by his daughter Catharina, and not to the two alone who were born when the deed was executed.

There was no question as to the validity of the deed. The estate of the donor and testator was not in debt; — . and there were no creditors to be affected by the deed of gift. Therefore its being a voluntary deed could not invalidate it. Both parties claim uuder it, and agree that it is to have operation. The only contest is about the construction of it: and this construction can only be made from the face of the deed.

On recurring to the deed itself, it appears to me obvious, that the donor had in view the two grand children by his daughter Catharina, then living, and no others. He says, *“*In consideration of the natural love and affec*272tion which I have and bear-to my beloved grand-children of my daughter Catharina, I have given, granted, &c> «nto the said my grand-children, ef my daughter Catharina,” &c.

These words are in the present tense and do not look tb the future. If the donor had intended to comprehend the children who might be born afterwards, it would have been very easy to have used words expressive of such intention : but he has not used such words. I must therefore conclude that he had no other grand, children in view than those born and known to him, for whom he avows a formed affection, which he could not have had a? to unknown children. Besides, this is the ordinary rule as to the construction of deeds. A deed speaks at the time it is *made;*a will as to the future.

With respect to the codicil, it was used in two Ways: First, as an instrument to alter the deed. Second, as evidence of the testator’s real meaning in the ■deed.

As to the first ground, it is impossible that the codicil can alter the *deed;*whatever rights that gave, were fixed and immutable, and not subject to he operated upon by a codicil.

As to the second, it is not proper to resort to extraneous sources for lights to guide in the construction of a deed, unless it he very doubtful and obscure/ and then with great caution.

In this case the deed is clear, and speaks a distinct explicit language, which cannot be rendered clearer, but may be darkened by construction. Yet the court is called upon to abandon the clear meaning expressed in the deed, and to seek another construction in the ambiguous language of an obscure codicil.

The result is, that I am of opinion that only the twó children of the daughter Catharine, who were born at the time of the execution of the deed, can take under it. And that Mr. and Mrs. Rotienbury are bound to deliver up to them the negroes in question. But as Mr. John Snell, one of these children, has sold his proportion to Charles Rotten berry, and he has made no complaint or *273claim, (though such purchase by a father-in-law of a young man made at a very low price, was highly improper and unwarrantable,) the court will make no order as to his part.

As to Mrs. Stroman’s share, it is ordered and decided that a partition he made of the whole number of negroes derived from the said deed, and that one half thereof, having relation to number and value, be«delivered to the complainants, Mr. Stroman and his *wife;*also that the defendants pay to complainants the sum of $428 55, being the amount reported to be due them by defendants, together with the costs of suit.

Hesr-e *W.*Desaussure.

From this decree an appeal was made on the following grounds:

First,- — That the limitation of the negroes after the reservation in the deed mentioned is void.

Second,' — .That if such limitation should be good, yet all the children of Catharina are equally entitled, in as much as the gift was not intended to vest immediately.

Third, — That the defendants (being trustees) could only be answerable for the actual profits of said negroes and therefore the report of commissioner allowing customary hire was erroneous, and ought not to have been confirmed.

Egan, defendant’s solicitor.

The appeal was heard at Columbia, by Chancellors James, Thompson, Desaussure, Gaillard and Waties, who unanimously affirmed the decree of the court, and dismissed the appeal.