
    Thomas Jones, et al. v. Henry D. M‘Neil, et al.
    
    Columbia,
    May, 1829.
    The delivery of personal property by a trustee to his cestuy que trusts, wilfnot divest the legal estate of the trustee, when such delivery is inconsistent with the directions and objects of the trust; nor will the consent of the cestuy que trusts avail to defeat the trust, and to vest the legal estate in them, whilst any of them are minors, and incapable in law of giving their consent.
    The testator bequeathed certain slaves to his wido w, during her life or widow* hood, to maintain and educate his children, and at her death, or marriage,to he soli and divided among his said children: Held, that the trust continued executory after the marriage of the widow, and that the children had not a right of property in the slaves, on which they could maintain trespass against a stranger for taking and carrying them away. Vide Jones v. Cole, 2 Bailey, 330.
    Although there was evidence at the trial on which the verdict might be supported, yet if the jury were erroneously instructed bn a material point, and it is uncertain on which of the grounds their verdict was founded, a new trial will be awarded.
    Tried before Mr. Justice Gailxard, at- Fairfield, Fall Term, 1828.
    This was an action of trespass for breaking and entering the plaintiffs’ close, and taking and ’carrying away certain slaves, the property of the plaintiffs. A great deal of evidence was introduced at the trial, and a variety of questions made, which, under the disposition made of the case by the Court of Appeals, it is unnecessary to specify.
    The plaintiffs, some of whom were minors, were the children of Henry Jones, deceased; and they claimed the slaves in dispute under a clause in his will, by which he devised and bequeathed the residue of his estate,- real and personal, including the said slaves, to his widow Judith Jones, “ during her life or widowhood, to maintain and educate his children, and at her death, or should she marry again, then the said estate, real and personal, to be sold, and equally divided among his said children,” naming the plaintiffs severally. Of his will the testator appointed his said widow sole executrix.
    It was contended on the part of the defendants, that the plaintiffs had no such right of property in the slaves, as would enable them to maintain this action; but that under the will the legal estate was vested in Judith Jones. To this it was replied; first, that ^ widow bad surrendered her trust, and delivered possession of the slaves to the plaintiffs: and, secondly, that the widow had married before the trespass complained of, and that the absolute right of property became thereby vested m the plaintiffs. On both of these grounds evidence was introduced; and the jury found for the plaintiffs the full value of the slaves, and their hire from the time of the trespass.
    The defendants now moved to set aside the verdict on several grounds ; such of which, as are material to the questions decided by the Court of Appeals, are stated in the opinion delivered by that Court.
    J. Gregg, for motion.
    C. Clarke, contra.
    
   Nott, J;

delivered the opinion of the Court.

If the property in question had been given to the wife for life, or during her widowhood, for her own exclusive benefit, she might undoubtedly have renounced that benefit, and delivered up the property at any time to the persons for whom it was ultimately intended. But it was given to her in trust for the benefit of the children of the testator, for their maintenance and education, and upon her death or marriage, it was to be sold and the money divided among them. They were not, therefore, in any event intitled to the property, but only to the proceeds of the sale. I have no doubt, if they had all been of age, but that they might have entered into a compromise with the tenant for life, and taken the property instead of the money, but as long as there was one minor, no such arrangement could be made. It would have defeated the object of the trust, which could not be permitted. Neither could it have vested in them in consequence of the marriage. The trust did not then terminate, but the property was to be sold and the money paid over. If there had been clear and satisfactory proof that the trustee had delivered over the possession of the property to the plaintiffs, or any of them, and the case had been distinctly submitted to the jury, that they could have maintained their action on the ground of possession alone, I will not say that the verdict might not have been supported. But the presiding Judge instructed the jury, that the trustee had a right to deliver up the property, and the legatees had a right to receive it; and also, that by the marriage the property vested in them, and that on both those grounds they might find for the plaintiffs. The evidence that the trustee had delivered up the possession was of a very doubtful character, and if it had been much more strong, we could not know on which of the grounds the jury founded their verdict. They may have been governed by the instructions of the Judge and not by the facts of the case, and the motion must therefore be granted.

Motion granted.  