
    CONSTITUTIONAL COURT, COLUMBIA,
    APRIL., 1807.
    John Crow and Robert Crow v. John Bell.
    Chattels personal cannot be given by deed to one and the heirs of her body; and on failure of issue, over to the right heirs of the donor. Such limitation over is void, and the whole vests absolutely in the donee.
    Trover, for the conversion of a negro boy, tried in York district, before Waties, J. The plaintiffs founded their claim upon an instrument of writing, which was in the words following: “ State of South Carolina, York district. To all to whom, dec. Know ye, that I, James Crow, of, &c., have given and granted, aliened, and confirmed unto my daughter, Jenny Crow, for the special love and regard that I have toward her, a certain negro boy, named Squire, now in my own possession, to herself and her heirs, lawfully of her own body, if she arrives to that age to have any, if not to return to my lawful heirs, the said negro, at her disease. In witness,” &c. And claimed as the heirs of said James Crow, who died intestate. Jenny Crow survived the donor, but died soon after in infancy ; and the plaintiffs (brothers of the donor) were his next of kin. Jenny was an illegitimate child. Upon this evidence the jury found a verdict for the plaintiffs.
    The motion in this court was to set aside the verdict, and for leave to enter up a nonsuit.
    
      Evans, in support of the motion. Real and personal property are governed by different rules. The heir may sue as such in a real action, but not in a personal action. It is necessary that the deceased should be represented, in what regards his personal estate. If the negro in question can be rightfully claimed as part of the personal estate of the deceased, James Crotv, yet he can be re. covered by no one but the personal representative of that estate, who may be compelled to make distribution, after payment of debts, <&c. But the plaintiffs did not shew any right to have the negro as the property of the estate ; but on the contrary, by their own shewing in evidence, it appeared that the property had been parted with by the deceased. 3 Bac. 22.
    Smith, E contra.
    
    The right was fairly tried, and the objection was not taken at the trial, that the action was maintainable as heir. The act of assembly of 1790 places real and personal property on the same footing, and directs their distribution in the same manner ; and the heir may maintain a personal action. Morg. Ess.
   Brevard, J.,

delivered the opinion and resolution of the court, 27th April, 1807, Grimke, and Wilds, Justices, absent. In considering this case, it is not easy to discover upon what ground the instrument of writing, which was adduced in evidence to support the action, was meant to operate. An opinion may have been en. tertained, perhaps, that the contingent remainder over to the lawful heirs of the donor, James Crow, upon the death of Jenny Crow, without issue, of her body, living at her death, might take effect, and that upon that event, the right of property, and of possession, in the negro in question, vested in the plaintiffs by operation of law, as persons designated or described in the deed of gift, by the name and description of lawful heirs of the donor. But personal proper, ty cannot thus be limited over by grant or conveyance ; and the remainder over, intended by the donor in this case, is clearly void? and the property vested in Jenny Crow absoluteiy. To limit per. sonal property, and give effect to remainders over in the way in. tended in this case, the intervention of a trustee is necessary, in whom the legal estate may vest. These limitations of personal property, under proper restrictions, may be effectuated in equity. Where such limitations are created by will, they are good by way of executory devise or bequest. See 2 Bl. Com.- 398. 8 Co. 952 Fearne, on Ex. Dev. 45.

Suppose, in this case, the donor had outlived the donee, would any one have been intitled to claim the remainder over, as his heir 1 Suppose the donee had left heirs of her body, yet they' could not have taken the property, for personal estate cannot be entailed, ^16 ^eec® fiuest‘on’ transferred the rrght of property and of possession to Jenny Crow, and the absolute right of property vested in her, the limitations over being against law and void ; and the plain-jjg.g n0|. [lav¡ng shewn any right of action, or given any evidence at the trial upon which the jury were authorized to find for them, we are of opinion the verdict should be set aside, and that the defendant should have leave to enter a nonsuit.  