
    Whitfield Jones and Lambert Jones v. John B. Cole.
    Conveyance of -slaves in trust for the use of donor during life, and after- • wards in trust for the use of plaintiffs, with a special clause in the deed, directing the trustee to act as trustee for the plaintiffs, as well as for the donor: Held, that on the death of donor, plaintiffs might maintain trover for the slaves, in their own names, against a stranger.
    A voluntary gift of part of her property, made by a woman on the eve of marriage, is no fraud upon the marital rights, if the intended husband knew of it before the marriage. Nor does it make any difference, that she was indebted at the time, unless it appear that that fact was fraudulently concealed from the intended husband.
    A husband cannot avoid a gift by his -wife, made previously to the marriage, on the ground that she was indebted at the time, unless he has actually paid the debts.
    A provision for the children of a former marriage seems to be an exception to the rule, that secret and voluntary conveyances, made by a woman in contemplation of marriage, are fraudulent upon the marital rights, and therefore void.
    Tried before Mr. Justice Richardson, at Newberry, Spring Term, 1831.
    Trover for two slaves. The plaintiffs gave in evidence a deed executed by their mother Anna Jones, afterwards Cole, on the 7th October, 1818, by which she conveyed the slaves in question to Samuel Hughens, in trust for her separate use- during her life, and after her death for the use of the plaintiffs ; and by a subsequent clause appointed him to act as trustee for the plaintiffs, as well as for herself: Samuel Hughens accepted the trust, and afterwards, being about to remove from the State, in pursuance of -a power vested in him by the deed, assigned his trust to John Jones. The donor died in December, 1824.
    The defendant moved for a nonsuit, on the ground, that the action should have been brought in the name of the original or substituted trustee. But the presiding Judge held, that the trust became executed at the death of the donor, and the plaintiffs were intitled to maintain this action in their own names. He therefore refused the motion.
    The case was then submitted to the jury upon the following facts. The donor intermarried with the defendant on the day after the execution of the deed. He was not a party to the deed. nor was he present at its execution; but it was fully proved, that it was shown to him before the execution, and that he did not object to it; and that after it was executed, he was apprized of the fact before the marriage took place. At a sale of the estate of Elijah Jones, her first husband,. the donor had purchased property to the amount of fifteen hundred dollars, including the two slaves now in dispute and their mother, for the price of eleven hundred and ten dollars. The value of the mother was estimated at seven hundred dollars. The distributive shares of the donor and the plaintiffs, in the estate of Elijah Jones, amounted, after payment of debts and expenses, to between six and seven hundred dollars; and for the plaintiffs’ shares defendant had charged himself in his accounts as their guardian. The share of each of the distributees in the land, was equal to three hundred and thirty-nine dollars and ninety-nine cents. It. seems that the defendant was a neighbour of Mrs. Jones before his marriage with her, and was aware that she was administratrix of her first husband, and somewhat indebted on her administration, at the time of the marriage.
    The jury found for the plaintiffs. The defendant now moved to set aside their verdict, and for a nonsuit, on the ground taken in the Court below; and failing in that motion, then for a new trial, on the following grounds.
    1. That the deed being made on the eve of marriage, and without the consent or approbation of the intended husband, was a fraud upon the marriage.
    2. That the gift was void as to existing debts, and the defendant being chargeable for thosé debts, is intitled to avoid the gift.
    3. That the verdict is contrary to law and evidence.
    Dunlap, for the motion.
    Pope, contra.
    
   Johnson, J.

The right of one having a general property in, or the right of possession of a chattel, to maintain trover for its tortious conversion, is a proposition too familiar to require illustration. The motion for a nonsuit resolves itself then into the question, whether, at the commencement of this suit, the plaintiffs had a property in, or the right of possession of the negroes which are the subject of it.

The deed, under which the plaintiffs claim, must, like all others, be so construed, that it may take effect according to thé intention to be collected from the deed itself; and whether we conspjer this with reference to the contract, or the habendum alone, there is no doubt about the intention. The donor, as recited in the deed, was about to be married to a second husband; and being desirous to secure her property to her own separate use during her life, and to her children by her former marriage after her death, conveyed the negroes in question to Samuel Hughens : for otherwise the intended husband’s marital rights would have attached, and her power over them would have ceased upon her marriage. And this intention is so expressed in the habendum as to admit of no doubt: It is to her separate use'for life, and after her death to the use of the plaintiffs. Take these negroes, but you are to suffer me to use them, or receive the proceeds of their labour, during my life; and after my death deliver them over to the plaintiffs. This is the plain common sense interpretation, and it must take effect accordingly.

According to this interpretation, the trustee himself had only a special property in the negroes, to keep them during the life of the donor, and then to deliver them to the plaintiffs: The right of possession, as well as the right of property, accrued therefore to the plaintiffs in the instant of the death of the donor. According to the terms of the trust, no act was necessary on the part of the trustee, to invest the cestuy que trust with the right of of property ; not even a conveyance, for personal estate passes without it. From the death of the donor therefore, they had a vested interest, which the trustee could neither withhold, nor charge with any burthen. A. delivers goods to B. in the confidence that he will deliver them to C. upon request, or at a given period. C. may maintain trover against B. or a stranger for their wrongful conversion. Flewellin v. Rave, 1 Buls. 68, cited Com. Dig. Action upon the case. Trover B. Jackson v. Anderson, 4 Taunt. 24. So if one give an order on his bailee for the delivery of goods to a third person, that third person may maintain trover for them, if the bailee refuse to deliver them. And so also, a factor may maintain trover for goods consigned to him, although they had never been in his possession. Fowler v. Down, 1 Bos. & Pul. 44. And all these cases proceed upon the ground, that the plaintiff has either a property in the goods, or the right of possession. Now what is this case 1 On the death of the donor, according to the legal effect of the deed, the plaintiffs had both the right of possession, and a vested interest in the negroes; and the defendant, a stranger, has converted them to his own use: they are therefore intitled to maintain this action against him.

The case of M'Clure, et ux. v. Miller, et al. decided in this Court a few terms past, and which is j'et in manuscript, is decisive of all the grounds taken for a new trial. It is rare to find two cases more alike; and in reference to both the grounds now taken, Judge Nott remarks, that it was hardly necessary to say, that the conveyance could be no fraud on the marital rights, when the husband knew of it before the marriage. I will not say, he adds, but that a case might arise, in which, if the wife being indebted should fraudulently conceal that fact, and make a voluntary conveyance of her whole property, or of so much as to leave her unable to pay her debts, and the husband should be compelled to pay the debts, he might not be allowed to stand in the place of creditors, and avoid the conveyance, although he knew of it before the marriage.

In addition,-1 will only add, that a provision by a woman for the children of a former marriage, seems to be an exception to the general rule, as to secret and voluntary conveyances made by a woman in contemplation of marriage, and in fraud of the marital rights of the husband; and that such conveyance will be good. Lyles v. Lyles, Harp. Eq. Rep. 292.

The defendant’s claims, on account of his liability for the debts of his wife, do not arise in this case, if there is any thing in them. It does not appear how that liability arose, and if there is a liability, the defendant must discharge it before he can claim to be put on the footing of a creditor at law, for he may, for any thing that we can foresee, never pay them. The motion is therefore dismissed.

Harper, J. concurred.

O’Neali., J. having been of counsel in the cause, gave no opinion.  