
    JAMES H. RAIFORD & AL. vs. BENJAMIN RAIFORD & AL.
    Whore a conveyance has been made by a father to one of his sons of land and negroes to be managed under the direction of that son, in trust that he will apply the proceeds of such property to the support of the father and his family during the father’s lifetime, and after his death sell the property and divide the proceeds thereof among his heirs and distributees— Held, that the son was entitled to a reasonable compensation for his caro and trouble in the management of tire estate.
    Where in such a deed a negro was mentioned which had been previously conveyed by the father to his son reserving his life estate, and it was shewn that this fact was disclosed to the gentleman, who drew the deed( and the son was informed by the draftsman, that it was necessary to insert the name of the negro, as the father had a life estate, but this would not affect the son’s title ; Held, that the son was not precluded by his acceptance of the deed from asserting his right to the negro.
    Held, further, that, as, by the deed of trust, the proceeds of the persona! property, after the death of the father, were t¡> be divided among all his distributees in the same maimer as if he had died intestate, according to the statute of distributions, the gift of the remainder in this negro to the son must be accounted for, as an advancement to him, in the division of such proceeds ; and Held further, that the value of this advancement must be estimated at the time it was made, that is, the value, at the time, of the remainder.
    The case of Croom v. Herring, 4 Hawks. 393, cited and approved.
    Cause removed from the Court of Equity oí Johnston County at the Fall Term 1849,
    
      The bill states, that Philip Raiford, on the 15th of Feb* ruary 1840, in consideration of his natural love and affection for his children and of ten dollars, executed and delivered to the defendant, Benjamin Raiford, his son, a certain deed indented, wherein and whereby he conveyed and assigned to the said Benjamin several tracts of land, a number of slaves, of which a slave named George was one, and a quantity of perishable property, all of which lands, slaves and other personal property is particularly described in the said deed, to have and to hold all the said property upon the trusts declared in the said deed, as follows, to-wit:
    “That the said Benjamin shall cultivate or rent at his discretion the said tracts of land and work thereon, or hire, the said slaves, and receive the proceeds and profits there-, of and apply the proceeds of said labor to the support and maintenance of the said Philip and his family in a manner and style at least equal to that to which they have been used, or so much of the said proceeds as maybe necessary for that purpose, during the natural life’of the said Philip, and after the death of the said Philip, to sell all the premises, both lands and negroes, also the farming utensils, black-smith’s tools, riding chairs, cart-wheels, and still, or make division of the same, at the option of my heirs and distributees or a majority of them, equally among all my heirs and distributees, except my daughter Sarah Jane Howell, which is to have the sum of one hundred dollars to be paid her out of the money arising from the sale of said property. The residue of the property, after selling enough to raise the sum of one hundred dollars for Sarah Jane Howell, to ¡be equally divided, if not sold, among all the rest of my heirs and distributees, except Sarah Jane Howell, in the same manner and according to the rules of descent and distribution in intestate’s estates. And the said Benjamin for himself, his heirs, executors, administrators and assigns, doth covenant with the said Philip, his heirs, executors administrators and assigns, that he will devote the proceeds and profits of the said lands and negroes (or slaves,) or so much thereof as may be necessary — after securing to himself such sum or sums as may be reasonable for his costs and charges in this behalf expended, to the support of the said Philip and his family — during the life of the said Philip, in a style at least equal to that to which he has been accustomed — that he will furnish him and his family good, wholesome and'suitable food and raiment during the lifetime of the said Philip — that he will deiray the expenses of educating in a suitable manner the family of the said Philip, if the funds arising from the said lands and negroes are sufficient for that purpose, and, at the death of the said Philip, that he or his heirs, executors and administrators will either sell and distribute the proceeds of the said lands and negroes, stock, household and kitchen furniture, farming utensils, black smith’s tools, riding chairs, cart wheels, and still, &c., among the heirs at law and distributees of the said Philip, all except Sarah Jane Howell, which is to have the sum of one hundred dollars paid to her out of the fund arising from the sale of the said property ; or make an equal division among them of the said lands, negroes, stock, household and kitchen furniture, at their discretion or option, or of a majority of them, reserving to himself the share, which would by law fall to him, as in case of the intestacy of the said Philip.” The bill then charges that the defendant accepted the said deed and undertook the performance of the trusts therein enjoined ; that he immediately took possession of the property therein mentioned and continued to cultivate the land, with the slaves and stock, until the death of the said Philip, and that he made profits to a much larger amount than was sufficient to defray the expenses of supporting the family and of educating the children. The bill further sets forth that the said Philip Raiford died on the-day of August 1844, leaving a last will and testament, whereof he appointed James H. Raiford, one of the plaintiffs, and the defendant, executors, which will has been duly proved and recorded, and the said James has qualified as executor, but whether the defendant intends to qualify the plaintiffs do not know, but they aver that he has all the goods of the testator in his hands. The bill then states that the said Philip left a number of children, and grand-children, the issue of children who died in the lile time of the said .Philip, all of whom are particularly named, and that Sarah Jane mentioned in the said deed died in the life time of their father and administration on her estate has been granted to James H. Raiford — who is one of the plaintiffs — that the other plaintiffs are all the heirs and next of kin of the said Philip Raiford, with the husbands of those who are married, except the defendants, Benjamin Raiford and Needham Raiford, who are also the heirs and next of kin of the said Philip. The bill then charges that the defendant Benjamin, since the death of his father, has sold all of the said property, except the negro George, and that he claims the said negro under an alleged gift from his father, many years before the date of the deed above referred to. The plaintiffs say they do not admit such gift to have been made, but, if it were made, the defendant,Benjamin, having accepted the trust as to George as well as in regard to the other property, cannot now set up such gift, but must hold the said George as a trustee in like manner as he held the other property. And, they say further that if such gift were made and the defendant is not precluded from setting it up by his ac«. ceptance of the deed of trust, yet it is to be considered as an advancement and accounted for as such in the division of the proceeds of the personal estate conveyed by the deed. The bill further states, that the defendant sets up a claim to a salary of $250 per annum for managing the property, during the lifetime of his father, and to com* missions on the proceeds of the sale made after the death of his father ; which demands the plaintiffs believe to be Unjust and unreasonable. The bill then prays for an account and relief, &c.
    The defendant, Benjamin, admits in his answer the execution of the deed of trust mentioned in the bill, and that under the said deed he took possession of all the property except the negro George, which he claimed under a bill of sale' from his father, which was given to him in consideration of valuable services rendered to the father by the said Benjamin and which was delivered to him many years before the execution of the said deed of trust; that he mentioned this fact to the gentleman, who drew the deed of trust, and was informed by him that it was necessary to put the name of George in the deed, as his father had a life estate in him, but that it would not affect the title of this defendant. He admits also the death of his father, the said Philip, as stated in the bill, and that he left a last will and testament, of which he appointed the plaintiff, James H. Raiford, and this defendant, executors, and that the said James has duly qualified as executor, but the defendant says he does not himself intend to qualify. Pie also admits that the names of the heirs and next of kin of the said Philip are correctly set forth in the bill, and that Sarah Jane Plowell, mentioned in the hill, died before her father leaving no issue, and that the plaintiff James, is her administrator. The defendant admits that he sold the property mentioned in the deed. He claims a reasonable compensation for his services and submits to account for all his transactions, as trustee under the said deed, and to pay to the plaintiffs whatever maybe found to be justly due to them.
    Depositions were taken and the cause transmitted to this Court.
    
      
      W. H. Haywood, for the plaintiffs.
    
      H. W. Miller and J. II. Bryan, for the defendant.
   Pearson, J.

There must necessarily be a reference in this case, as the defendant admits the right of the plaintiffs to have an account.

Two questions were urged, with a view to obtain a declaration of the opinion oflhe Court, in aid of the Master in stating the account:

, First : The plaintiffs insist, that the defendant is not entitled to a credit for any amount, as a salary in compensation for his services during the time he superintended and managed the estate ; nor to a credit for any sums,that he may have advanced, over and above the profits of the farm, for the maintenance of Philip Raiford and his famil}r, and the education of his children, and the other purposes of the trusts; because, as the}'' allege, by the-true meaning of the deed of trust, the defendant undertook and engaged, that the income should suffice for the support of the said Philip Raiford and his family, after all costs and charges.

Unless positive words forbid it, such a construction-will be given to a deed, as to make its provisions reason-ble. It is not reasonable for a man to “work for nothing and find himself;” and yet, such would be the effect of the construction contended for by the plaintiffs.

If, in the division, after the death of his father, a larger share was given to the defendant than to any of the other children, that would readily suggest itself, as a reason for his agreement to work without any direct or indirect' compensation, and,, possibly, also as a reason for his undertaking and engaging, that the income should suffice for the support of his father and famil}r. There is, how-, ever, no such provision in the deed, and after the death of his father, it is made the duty of the defendant to divide the land, negroes, stock, &c., equals among all of the children, except Sarah Jane, “reserving to himself the share which would by law fall to him, as in case of intestacy of said Philip.” The trust declared by the deed is, that the defendant will cultivate the tracts of land, or rent them and hire out the negroes, and apply the proceeds to the support and maintenance of the said Philip and his family during his life, in a manner equal to that to which they had been used, or so much thereof, as may be necessary for that purpose, and at his death, divide the land, negroes, die. If the deed stopped here, there might be some ground for the conjecture, that the parties believed the proceeds would certainly be sufficient for that purpose, and leave an excess ; and that, as the excess or accumulation from the income is not expressly mentioned in the clause directing a division, the intention was, that this excess should be the compensation of the defendant for insuring, that the proceeds would be sufficient for the support, &c. But, when taken in connection with the covenant of the defendant, no doubt is left as to the proper construction ; for there, to the stipulation, that he will apply the proceeds, or so much thereof as may be necessary, to the support, áte., is added, “after securing to himself such sum as may be reasonable for his cost and charges,” <^c., and the excess is directed to be applied to defray the expense of educating the children in a suitable manner, if sufficient for that purpose. It must, therefore, be declared to be the opinion of this Court, that, in taking the account, the defendant will be entitled to a credit for such an amount, as may be a reasonable compensation for his services, and for any sums advanced by him for the purposes of the trust, over and above the profits of the farm, or what ought to have been made by proper management.

Secondly : The plaintiffs insist, that, as the slave George is included in the deed,of trust, the defendant is not at liberty to set up title in himself, or, at all events, that he is chargeable with his value at the death of Philip Raiford, as an advancement.

The defendant insists, that he is not bound to bring George into the division as a part of the trust property, because, as he alleges, the said slave belonged to him at the death of his father by force of a deed of gift, executed by his father long before the execution of the deed of trust» and that he mentioned this fact to the gentleman, who drew the deed of trust, and was told by him, that it was proper to put George in the deed, as his father was entitled to his services during his life, but that this would not affect the rights of the defendant under the deed of gift after his father’s death. He also insists, that he ought not to be charged with the value of George as an advancement ; but, if he is charged, the value of his interest should be fixed at the date of the deed of gift, May 1828, his interest being a remainder in a negro boy, fourteen years of age, after the life estate of his father.

The deed of gift was'duly executed in May 1823, and registered in August 1834. By it, Philip Raiford gives to the defendant the slave George, reserving to himself a life estate. The deposition of Mr. Husted, who drew the deed of trust, fully sustains the allegations of the answer. This proof and the circumstances clearly show, that it was not the intention of the parties, that George should be embraced in the division to be made by the defendant after the death of his father, although the general words in the deed of trust “lands, negroes, stock,” &c., would include him. Such being the manifest intention, there is no doubt, that the defendant is at liberty in this Court to set up his title under the deed of gift.

The next question is, ought George to be accounted for by the defendant as an advancement?

The declaration of trust provides, that, after the death of Philip Raiford, the lands, negroes, stock, &e., or the proceeds of sales, (if a majority of the parties interested prefer to have a sale,) shall be equally divided “among1 all of my heirs and distributees, except Sarah Jane Howell, in the same manner, and according to the rules of descent and distribution in intestate’s estates,” and in the covenant of the defendant, set out in the deed, after providing for the division, these words are added, “reserving to himself the share, which would by law fall to him as in case of intestacy of the said Philip.”

In the case of Croom v. Herring et al. 4 Hawks 393, the testator directed the proceeds of the sale of real and personal estate ‘ to be divided among all of my heirs, agreeable to the statute of distribution of intestate’s estates.” Some of the children had been advanced ; but the main question was, who should take the personal estate under the word “heirs.” After a learned discussion of the meaning of the word “heirs,’ Judge Henderson concludes, that, in reference to personal estate, it did not mean “children,” “next of kin,” or heirs at law, or have any fixed or definite meaning of itself, but as there used, with a reference to the statute of distribution, its meaning was heirs quoad the property; in other words, the persons, who would under the statute succeed to the personal estate, or as we now express it in one word, instead of a phrase, “the distributees and that the statute was referred to, “to designate, who were meant by the word heirs ;” and he held, (with great hesitation) that, having answered this purpose, the reference to the statute could not also be made to answer the purpose of pointing out the manner of division of that property, in connection with the other property, which had been advanced, but must be confined strictly to that property and exclude advancements. Page 401-2. This conclusion is adopted at the end of an elaborate argument upon the other question, and his train of reasoning is not as clearly developed as was usual with that very able Judge. He seems to have had a vague notion, that, because the reference to the statúte was made to answer one purpose, it ought not to be so far taxed as to make it answer a second, probably from some undefined analogy to the doctrine in reference to the statute of uses, by which it is held, that the statute, having carried the legal estate to the first use, could not carry it to the second. But, however that may be, he expresses great hesitation ; and it may well be questioned, whether the reference to the statute ought not to have been permitted to answer the whole purpose, as well to point out the manner of the division, as to designate the persons, instead of being stopped at the half way point.

At all events, that decision has no application to the point now under consideration. There, the word “heirs” was used in reference to personal property. Here,, the word “heirs” is used in reference to land, and the word “distributees” in reference to personal property — both words of definite legal meaning, appropriately used; so that here, the maker of the deed has designated the persons himself, leaving no office for the reference to the statute of distributions to prefer, unless to point out the manner, in which the division is to be made, and he expressly invokes the canons of descent and the statute of distributions for that purpose, by the words, “in the same manner, and according to the rules of descent and distribution of intestate’s estates.” But so far as the defendant is concerned, there cannot be a question ; for, he is “to reserve to himself the share, which would fall to him, as in case of intestacy of the said Philip.” This of necessity brings in the advancement.

The remaining’question is, as to the time when the value must be fixed upon the slave George. It is clearly settled, that the value at the time of the advancement is the sum to be accounted for. The plaintiffs contend, that the defendant should account for the value at the death of Philip Raiford, This is not consistent with the idea of its being an advancement; for, if the gift did not take effect until the death of the parent, then it could not be an advancement: For advancements must be made during the life time of the parent. We think it clear, that the gift took effect at the date of the deed of gift in 1828. The enjoyment or right of possession was future, but the deed passed a present vested estate — such as the defendant might have sold and converted into money and such as could have been taken under a fi. fa,.

The defendant must be charged with the value at that time, subject to the life estate of his father.

There must be a reference to take the account as prayed.

Per Curiam.

Ordered accordingly.  