#### William Youmans, *et al.*Trustees, *vs.*Wm. B. Buckner.

Tried before his Honor Judge Butlex, at Coosawhatchie, Fall Term, 183S.

*Report of the Presiding Judge.*— Trespass for taking and sel. ling two negroes, George and Frank, *it*was admitted, that the defendant, as sheniF, bad levied on, and sold the negroes, to satisfy an execution of Ephraim Smith vs. William Youmans, sen. The plaintiffs contended, that the legal title of the negroes was exclusively m them, by virtue of a deed of trust executed by Wm. You-mans, sen., to thorn, (the plaintiffs Levi and William Youmans, jr.,) on the 24th February, 1834. The following is a copy of the deed.

“ *The State of South Carolina, Beaufort District.*To all persons unto whom ‘hese presents shall come, greeting : — Whereas, I, William Youmans of (Saint Peter’s parish, in the State and district aforesaid, am lawfully seized and possessed of, *m*my right, of the following slave negroes, lo wit, Tener, Limerick, Vianna; Frank, Liddy, Nnrow, Bob, Jacob, Caroline, Naucy, Jane ; also my lands, and stocks, cattle, hogs, and horses, and household furniture: Now. know ye, aud all me», by these presents, that I, the said Wm. Youmans, for divers good causes, and valuable considerations, me hereunto moving, have thought proper, and as my own right, and for the goo.1 will and affections whieh 1 do bear, and for my beloved wife, Mary Youmans, aud the children Í have lawfully begotten) by her, as Levi, John, William, Robert,Thomas, Elizabeth, Sarah, Aim, Mary, James, Lavie.y, now living, I do hereby give all i he abovementioned property to my beloved wife during her natural life, and after her decease to be -the property of my children, viz : Levi, John, William, Robert, Thomas, Elizabeth, Sarah, Ann, Mary, Jumos, Lavicy, to be equally divided between my said children, to share and snare alike, i do hereby these presents, give, grunt, and confirm, unto my loved wife Mary Youmans, the slave negroes, viz. Tener, Limerick, Vianna, Frank, Liddy, Nancy, Na-row, Bob, Jacob, Caroline, Jane, aud their increase; and also my lands, and stocks, caulc, hogs, and horses, and household furniture, to be equally divided, to share and share alike, and to them and their heirs and assigns forever, after the decease of my beloved wife Mary Youmans. And tor the faithful execution of this deed, and the property therein given, as (herein described, I do hereby appoint, my lovj-'g sous, Levi and William Youmans, of the district aforesaid, trustees for my wife and remaining children ; and for *205the full and sure conveyance of said slave negvoes, as abovenamed, to be for them and their uso, I do hereby deliver the said slave ne. groes, and all property herein mentioned, into the possession of my wife Mary Youmans, and my trusty sons, Levi and William Y oumans.

In testimony whereof, I have hereunto set my hand and seal this 21lh day of February, in the year of eur Lord, one thousand eight hundred and thirty four, and in the 58th year of American Independence.

N. B. The abovenamed Jane is excepted to Levicy, and confirmed by a former gitt. (Signed,) William Youmans. (L. S.)

Signed, sealed, and delivered, in the presence of us, Stephen Youmans, Levi Youmans, Wm. Stewart.

*South Carolina, Beaufort District.*Personally appeared before me, M. J. Buckner, William Stewart, who, being duly sworn, de-poseth aud saycth, that he was present, and saw William Youmans sign, seal, and deliver, the within deed, for the purposes therein mentioned, and that Stephen Youmans and Levi Youmans, together with himself, signed the same as witnesses. (Signed,) Wm. Stewart. Sworn to before inc, this 38th February, 1834. M. J. Buckner, J. P.”

Two objections were taken to the plaintiffs’ title by the defendants counsel: First that it was not made *bona fide,*but with a design to defraud Ephraim Smith, and to deprive him of the benefit of a judgment, which he would probably recover against the said William Youmans, sen. in an action of slander, which the said Smith, commenced against the said Wm. Youmans, sen., a short time after the deed was executed ; and secondly, that according to the legal effect and operation of the deed, the donor had such an interest under it, as might be the subject of levy and sale.

I thought myself, from the evidence introduced, that the first objection whs well fmnded, but it is unnecessary to say any thing further in relation'to that, as the jury, have found a verdict, sustaining the second objection alono. They were well warranted, in finding sucii a verdict, from what I said to them in my charge. I charged them, that assuming the deed to be fair, and unimpeachable for fraud, it secured such an interest to the donor as might be the subject of levy and sale ; and they found accordingly : at least, I so understand it. The verdict is in the following words : “ We find for the defendant on the ground that the life interest in the ne-groes was liable to sale. (Signed,) Archibald Chaplin, Foreman.”

The only question, therefore, for the Court of Appeals, is, did I put a legal construction on the deed ? The donor, the husband, gives by deed a life estate to his wife, and expressly secures the possession to her. The last clause of the deed is as follows : “ I do hereby deliver the said slave negroes and all property herein mentioned into the *possession*of my wife Mary Youmans, and my trusty sous, Levi and William Youmans.” It was, no doubt, the purpose of the donor to convey his property in such a way that it could not be reached by execution ; but at the same time he wished to secure a life esiate to his wife, and thereby, a usufructuary inte. *206rest in the property to himself during his own life. The property was in hia possession at the time of the levy, and had been in his possession from the date of the deed, although he had made a formal delivery to trustees aod *his wife,*at the time the deed was made. It was contended that the wife’s possession was for herself, by permission of the trustees, and that the husband had nothing but an equitable interest, which could not be sold ; that is, he had a rigid merely to use the rents and profits of his wife’s interest, which was vested in trustees for her U9e and benefit. Now, I think the donor had something more; he had not only a right to the use, but to the possession. The possession of the wife was his possession. And that interest little or much, I thought was subject to levy and sale ; and 1 think, I am sustained in this view of the case by the case of Fogartie vs. Hubbell.

A. P. BUTLER.

The plaintiffs appeal, and move to sot aside the verdict, and for a new trial, on the following grounds :

1. That his honor erred hi charging the jury, that according to the legal effect and operation of the deed, the donor had an interest under it, which might be the subject of levy and sale under execution against him.

2. That the finding of the jury was contrary to law.

W. F. COLCOCK, *Plaintiff’s Attorney.*

Mr. Justice O’Neali,

delivered the opinion of the court.

This case tm'ns upon the legal effect of the deed under which the plaintiffs claim : if that be a conveyance to the plaintiffs, and the use be not executed, then this verdict cannot stand.

It is contended, first, that the conveyance is a direct conveyance to the wife of the grantor for her life : if this be true, there can be no doubt that at law it is void ; for in such a case it is nothing more than a grant from the husband to himself. But in equity a-deed from the husband to his wife would be supported as an agree* ment to hold to the separate use of the wife, and the busbaud would thus be made her trustee. To test the objection made to the operation of the deed, it is necessary to look at it in all its parts, and to give it such a construction, that it may not conflict with the law, if that be possible. There is no form of words necessary to give effect to a deed conveying personal property in trust for the use oí another. Like most other instruments the intention when plain is to have effect. The deed conveys in the first place the property to the wife for life and after her death to the grantor’s children. If it had stopped here, it is plain that the husband’s title would have remained undivested : but in another part of the deed, *207he says, *“*and for the faithful execution of this deed, and the property therein given, as therein described, I do hereby appoint my loving sons Levi and Willaim Youmans, of the district aforesaid, *trustees for my wife and remaining children*; *and for the full and sure conveyance of said slave negroes as abovenamed, to be for them and their use, 1 do hereby deliver the said slave negroes, and all •property herein mentioned, into the possession of my wife, Mary Youmans, and my sons Levi and William Youmans”*This part of an untechnical paper must be construed with what has gone before. The sons Levi and William are appointed trustees for the wife and remaining children. Their appointment was for the purpose of giving legal effect to the deed, for in the words of the deed, they were appointed for its “ faithful execution.” It would have had no legal effect if trustees could not take a present interest in the property. In this connection the deed may be regarded as conveying die property to them in trust lor the useof the wife and children. The subsequent w ords, “ for the full and sure conveyance of said slave negroes, abovenamed, to be for them and their use. I do hereby deliver the said negroes, and all property herein mentioned, into the possession of my wife, Mary Youmans, and my sens Levi and William Youmans,” places the matter beyond doubt. For a trust in personal property is a mere bailment, it is a delivery to one for the use of another. Jones vs. Cole, 2 Badey, 330. This being so, the delivery to the wife and trustees, was a good conveyance of the legal estate of the grantor, to them, to hold to the respective uses contained in the deed. The trustees took the legal estate by their possession, and the wife ihe equitable by her’s. The previous parts of the deed, are to be regarded as the mere declaration of the uses to which che estate was to be held.

But it is said, if this be so, the use was executed for the life of the wife, by the delivery to her, and that therefore the husband’s marital rights attached, and the property was revested in him. This, hove ever, isa mistaken view. A conveyance of land to trustees, for the use of the wife, is not executed by the statute of uses. For it is necessary to give effect to the trust, that it should not be executed. It is the preservation of the rights of the wife against those of the husband. This is more especially the case, when the husband conveys to trustees for the use of his wife. To permit the use to be executed would defeat the deed. In personal estate *generally*the right of property is in the trustee : he may divest himself of it by an unconditional delivery to his *cestui que*trust. But where the *cestui que*trust is a married woman her pos*208session does not divest the legal estate of the trustee. She is regarded as holding under him, and by his permission.

Baxley, for Appellants'.

Dh Tkevillk, for Appellee.

According to these views the plaintiffs having the legal estate, could recover against a stranger, who disturbed the possession of their *cestui que*trust.

The motion for a new trial is therefore granted.

JOHN B. O’NEALL.

We concur,

■RICHARD GANTT,

JOSIAH J. EVANS,

J. S. RICHARDSON,

A. P. BUTLER.