#### *Cornelia M. De Millen, per pro. ami, vs. James McAlilley.*

"Where a deed of giftfrom a parent to his daughter (the plaintiff) of a negro, contained, among other things, after appointing trustees, the following provisos, “ Provided always, and these presents are upon this spe.cial trust and confidence, and upon this express condition, that the said trustees, their executors or administrators, shall and do permit and suffer me, the said G. De M. to use, keep and enjoy the profits of the said negro Ben, during my natural life, without paying or yielding any for the same or in any respect thereof. Provided also, that if I should remove the said negro Ben out of my possession, or the said negro should be removed out of my possession by any means whatsoever, then the use reserved shall terminate, and the said trustees, or either of diem, shall take the negro Ben into their possession, and apply the profits arising from him to the use of my said daughter, until she arrives at the age of 21 years, or marries; at which time the said negro Ben tobe delivered up to her, her heirs, executors, administrators or assigns.”

It was held, 1. That the true construction of the deed was, that it was a conveyance to trustees for the use of G. De M. for life, with a condition forfeiting his estate if he should part with the possession of the slave, or any one should take him out of his possession; and in such cáse, the profits were to be applied to the use and benefit of plaintiff, until her mrrriage or full age; and if De M. should retain possession until his death, then the possession to be delivered to plaintiff.

2. That De Millen had a life estate in said negro, which might be the subject of bargain and sale under execution.

3. That the reservation of the use of the chattel to th e grantor for life, made the whole deed fraudulent and void against creditors.

*Before*O’Neall, J. *at Chester, Fall Term,*1836, Whose report of the case is as follows :

This was an action of Trover for the recovery of the value of a negro man named Ben, sold by the sheriff of Chester, as the *500property of the plaintiff’s father, George De Millen, aud purchased by the defendant. The case, it seemed to me, depended upon the construction of the deed from De Millen, conveying the negro for the use of his daughter. That deed is as follows : “ South Carolina, Chester District. Know all men by these presents, that I, George De Millen, of the State and district aforesaid, in consideration of one dollar, and the natural love and affection which I have and bear to my daughter Cornelia Margaret De Millen, and for and towards the better support and maintenance of her hereafter, and for divers other good causes me'thereunto moving, have given, granted, confirmed and sold, and by these presents do give, grant, sell and confirm, unto the said Cornelia Margaret De Millen, and to her heirs forever, a negro man slave named Ben, about 31 years of age; to have and to hold the said negro Ben, hereby given, granted, sold and confirmed, to her and to her executors, administrators or assigns, as her’s and her own proper goods and chattels, from henceforth forever ; and I do hereby nominate, constitute and appoint Peter Goza and Mark Goza, trustees for the better carrying into effect the intention of this gift: Provided always, and these presents are upon this special trust and confidence, and upon this express condition, *that the said trustees, their executors or administrators, shall and do permit and suffer me, the said George De Millen, to use, keep and enjoy the profits of the said negro Ben during my natural life, without paying or yielding any for the same, or in any respect thereof. Provided ahoays, also, that if I should remove the said negro Ben out of my possession, or the said negro should be removed out of my possession by any means whatsoever, then the use reserved shall be terminated, and the said trustees, or either, shall take the negro Ben into their possession, and apply the profits arising from him to the use of my said daughter, until she arrives at the age of*21 *years, or marries, at which time the said negro Ben to be delivered up to her, her heirs, executors, administrators or assigns.”*After hearing the whole case, my opinion was demanded upon the deed, whether the plaintiff" could recover *'l*And my opinion being against her upon it, a nonsuit was submitted to, with leave to set it aside. It seemed to me that the true construction of the deed was, that it was a conveyance to trustees, for the use of George De Millen for life, with a condition forfeiting his estate if he should part with the possession of the slave, or any one should take him out of his posses*501sion, and in such a case to apply the profits of the labor of the slave for the use of the plaintiff, until marriage or full age, at which time the negro was to be delivered to her; and if De Millen should retain possession during life, then at his death possession was to be delivered to the plaintiff. To say nothing about the manifest legal result of the title to the possession being in the trustees, and not in the plaintiff, I thought, 1st, that De Millen had a ‘life estate which was liable to execution, and which was properly sold by the sheriff; for the proviso defeating that estate is a plain fraud on creditors. 2d, that the reservation of the use in the chattel to the grantor for life, made the whole deed fraudulent and void against creditors.

The plaintiff appeals, and moves to set aside the nonsuit, on the annexed grounds.

1. Because the deed under which the plaintiff claimed, was a good and valid deed in law, and the legal estate in the negro vested in the plaintiff, so soon as the deed was executed, and the mere use of the slave reserved to the donor, did not vitiate the deed.

2. Because, so soon as Geo. De Millen was deprived of the possession of the negro, the use reserved terminated, and the title of the plaintiff became perfect.

B. Because, from the proof offered, the court should have sent the case to the jury.

T. and M. Williams *for the motion.*

Gregg and McAlillet, *contra.*

Curia, *per*

Gantt, J.

The report of the presiding judge in this case is so full and explicit, and his reasoning so satisfactory on the law giving construction to the deed, under which the plaintiff rests her claim, that it is deemed unnecessary to add any thing further in support of the views taken by him. It is therefore adopted as the opinion of the court, and the nonsuit as ordered cannot be set aside. The motion is therefore refused.

Richardson, Butler, Earle and Evans, JJ. concurred.