#### *Willard Watson, trustee, vs. Edward Pitts.*

*Before*Richardson, J., *at Newberry, Spring Term,*1831.

This was an action of trover to recover certain negroes and other property which were sued for by the plaintiff, as trustee of Ann Barlow. The plaintiff derived his title to the property sued for from John Barlow, the husband of said Ann. It appeared that John Barlow, in consideration .of marriage, in the year 1808 conveyed the negroes and other property in dispute to William Shaw, Esq., his heirs and assigns, in trust for the use of his wife Ann, during her life, and after the death of the husband, then to vest absolutély in his wife Ann, as the Court understands the deed, but .as plaintiff’s counsel supposes, the legal title to said property and negroes is still vested in the trustee or his assigns. Wm. Shaw accepted the trust, and continued to act down to 1816, when he assigned the trust by an endorsement on the trust deed, to Willard Watson, .the plaintiff Shaw died in 1821 or 1822. John Barlow, sometime after the death of Shaw, departed this life, leaving his widow, Ann, alive. After the death of J. Barlow and W. Shaw, Ann Barlow and Willard Watson, the plaintiff, applied to the Court of Equity, in 1829, and the plaintiff was, by the order of that Court, appointed trustee, in the room of Shaw, deceased, and then the property was demanded and sued for by plaintiff, in September, 1829. So that the only .question for the Court now to determine, is in whom, was the legal title to the property sued for at the time this suit was brought? -If, as the plaintiff supposes, by the terms of the deed, it was in him, the non-suit must be set-aside. But if in the widow, Ann Barlow, from the death of her husband, as the Court held, the non-suit is to be confirmed.

Plaintiff appeals, on the grounds,'

*2991. That from the case made by the evidence, the legal title to the property sued for was in plaintiff as trustee, and not in Ann Barlow, as held by the Court below.

2. Because the parties had fixed the construction of the deed as vesting the legal title of said property in the plaintiff

3. Because Ann Barlow herself had admitted the legal title to the property in dispute to be in the plaintiff,, and procured him to be appointed her trustee by the Court of Equity, as to the property in dispute, after the death of John Barlow, her husband.

*Curia, per*

Johnson, J.

In Jones vs. *Coles,*decided during the present sitting, it was decided, upon very satisfactory principles, (if it had been possible to consider the question doubtful,) that any one having property or the right of possession, might maintain trover for its wrongful conversion by a stranger: and I refer to that case for the doctrine of íaw. The deed from John Barlow to William Shaw, conveys the legal property of the negroes in dispute, in appropriate legal terms, and it is declared to be “to the use of, and in trust nevertheless, for the solé use, benefit and behoof of the said Ann, from this date, for and during the term of her natural life.” It is true, there is no disposition made of the property after the termination of Mrs. Barlow’s life estate, but according to the legal effect ofthe deed, the property is in Shaw, until her death (for the statute for transferring uses into possession, is limited to real estate,) and it is necessary that the legal property should abide in him, to enable him to fulfil the trust declared in the deed. A conveyance in trust was necessary to obviate the marital rights of the husband, which would have arisen out of a direct conveyance to herself — and as long as she lives the same necessity will exist, as she may again take husband. Whether, therefore, we consider the rights of Shaw, in reference to the legal effects of the deed, or the trusts executed under it, the legal estate would have abided in him had he been living. The Act of the Legislature expressly authorizes the Court of Chancery to substitute a trustee for one who is deceased, where no provision is made in the deed or will for that event; and all the formula of that Act were observed in the order substituting the plaintiff in the place of Shaw, The assignment made by Shaw was void, for want of a power to that effect in the deed. But under the order of Chancery, all powers which he had, were transferred to the plaintiff

We are therefore of opinion that the motion should be granted — and it is accordingly so ordered.

DAVID JOHNSON.

We concur. John B. O’Neall, Wm. Harper.