
    
      A. J. Pyron et ux. vs. Edward Mood.
    
    Where there has been a post-nuptial agreement, between two parties, and a deed of trust is executed, (to a third party as trustee) of certain slaves, for the use and benefit of both husband and wife, during life, upon the death of either, to the use of thesurvivor, and after die death of both, to the use of the children of the marriage, with a power to sell and reinvest, at the request of husband and wife, or die survivor of them; and after the death of the wife, the trustee, at the request of the husband, sold the slaves and conveyed them to the defendant. It was held, that the purchaser’s title was good. That the trustee had not only dre legal estate in the property, but he had die power to sell, and at law, die title could not be disputed.
    
      Before Butler, J. Charleston, January Term, 1841— whose report of the facts of this case is as follows :—
    This was an action of trover for five negroes. The plain- ' tiff, Pyron, married one of the daughters of Charles and Rachel Simons, and he, with the other minor children of the same parents,' bring the action against the defendant, who bought the negroes in question from Peter Redheimer, the trustee of Rachel and Charles Simons, in their life time. And as the case will turn on the right of Red-heimer to sell, under certain deeds of trust, it will be necessary to advert to them, and the circumstances under which they were executed. Charles Simons married the sister of Redheimer — his habits became intemperate,, so much so as to excite the fears of his friends that he would waste his property and leave his family destitute; and with a view of securing the property which he had, for the use of himself and his wife during life, and after their death to their children, he and his wife executed a deed of trust to Redheimer. This deed was executed 8th October, 1829. After reciting the objects for which it was made, and describing the property conveyed, part of which was the negroes in controversy, it contains the following clause: (to wit.) To have and to hold, and so forth, “ in trust, to permit and suffer the said Charles and Rachel Simons to have, use, occupy and enjoy the above granted premises, and to receive the interest, income and emoluments arising therefrom, for and during the joint natural lives of them, the said Charles and Rachel, without being subject and liable to the debts, (fee,, of the said Charles and Rachel; and from and immediately after the death of either of them, the said Charles and Rachel, then in trust, to permit and suffer ‘ the survivor of them, the said Charles and Rachel, to have, use, occupy and enjoy the above granted premises, and to receive the interest, income and emoluments arising therefrom, for and during the life of said survivor; and from and immediately after the death of such survivor, then in trust, to and for the use, benefit and behoof of the issue of said marriage, if more than one, as tenants in common and not as joint tenants, their heirs, executors, administrators and assigns; and if but one, to that one, his or her heirs, executors, administrators or assigns, free, clear and absolutely discharged of and from all and any further trusts whatsoever.” The above property continued in the possession of Charles and Rachel, till the death of Rachel, who died 26th October, 1836, and her husband Charles died November 9th, ensuing. He was found dead, with a bottle that had some spirits in it, and a bottle of laudanum. An inquest was held over the body — verdict that the deceased came to his death by drinking ardent spirits and taking laudanum. With a view to shew that Redheimer sold the property now in controversy, before the death of Charles Simons, the survivor, and of course with his consent, the plaintiff offered in evidence the bill of sale from Redheimer to the defendant, and which he contended bore date 2d March, 1837,. and that it had been fraudulently antedated to 2d November past, and in the sixtieth year of American Independence — the word sixty-first having been erased and sixty inserted. This is noticed by memorandum above the name of the witness Carson, who was not present when the paper was given in evidence. He was sent for, and being sworn, said that the bill of sale bore its true date, and that he was certain it was executed in thirty-six and not thirty-seven, and he said he had no doubt that it was executed in good faith and in conformity with the express understanding of the parties, Charles Simons and Redheimer. Here it appeared that Redheimer had the children of said Rachel and Charles, and was educating and supporting them. Mr. Carson said it was understood these negroes were unproductive, and were sold for the purpose of having their proceeds invested in other productive property.
    It will be seen, if the deed bore its true date, it was executed seven days before the death of Simons, and that it was so executed, I have no doubt. For the purpose of shewing that Charles Simons, the survivor, had given his assent to the sale of this, as well as other property contained in the deed of October, 1829, the defendant offered in evidence a deed, bearing date 29th October, 1836, executed by Charles Simons to Redheimer. This deed, after many recitals and explanations of its objects and designs, contains this clause: “ And whereas, most of the negroes are young and unable to work, producing no income to the estate, this conveyance is therefore made to the said Redheimer, that he will sell any or all of said negroes at the best market price, and invest the proceeds (after paying the said debts and funeral expenses of the said Rachel Simons) in other property that will be more for the benefit of the said children, and in trust that the said Peter Redheimer will take the said children in charge, and have them educated, (fee., out of the income arising out of said trust estate.” (See deed.)
    This, it was contended, referred to and was in conformity with the last clause in the deed of 1829, which is as follows: — “And lastly, it is hereby convenanted and agreed between the said Charles and Rachel Simons, and Peter Redheimer, that at any time when it shall appear beneficial, or for the interest of the said Charles or Rachel, to sell or dispose of any of the above mentioned property, that the said Peter will sell and dispose of the same, at the joint request, or at the request of the survivor of them, and vest the proceeds in other property, which shall be immediately subject to the operation of all the uses and trusts expressed in this indenture.”
    I will not here undertake to give the reasons of my judgment below, on the construction of the deeds and clauses of deeds which affected rights of the parties concerned.
    I held, that by the deed of October, 1829, Redheimer had the legal title in him, and that it continued in him until the death of Charles Simons; or, to state the converse of the proposition — that the trust was not executed in Simons and wife, during their joint life, or in the survivor. The true object of the deeds being to deprive Charles Simons of any control of the property at any time, to the prejudice of his wife and children. After the death of his wife, Charles surrenders his interest to the trustee during his life, for the purpose of maintaining the children, and gives an express authority to sell and invest, (fee., for the purpose of effecting the true end of the trust. The whole question was, whether the title was made to defendant while Redheimer was trustee, for if so, the title would be good in a court of law. Another question, however, was submitted to the jury, viz: did'.Simons assent to the sale to defendant in his life time, or was the sale, in fact, made without his assent and after his death 1- This was the question mainly argued, and upon it, the jury found for the defendant.
    
      Deed of 8 th October, 1829.
    State of South Carolina.
    This indenture, made the eighth day of October, in the year of our Lord one thousand, eight hundred and twenty-nine, between Charles Simons and Rachel Simons, of the city and district of Charleston, and State aforesaid, of the one part, and Peter Redheimer, also of the said City and. State aforesaid, of the other part. Whereas, in consequence of the intermarriage of the said Charles Simons with his wife, Rachel Simons, he became, in right of his said wife, possessed of and entitled unto the following property hereinafter mentioned. And whereas, the said Charles Simons and Rachel Simons are desirous, from the love and affection they and each of them bear unto their children, Charles John Simons, Eliza Ann Simons, Sarah Christina Myrick Simons, and all the future issue of the said Rachel Simons, lawfully begotten by the said Charles Simons, to settle upon them the following property, they became so possessed of and entitled unto by their said marriage aforesaid. Now, therefore, this indenture witnesseth that the said Charles and Rachel Simons, for and in consideration of the natural love and affection which they have for their children now got, and such other or others as may be gotton, and also in consideration of the sum of five dollars to them, the said Charles and Rachel Simons, in hand paid, at and before thesealing and delivery of these presents, by the said Peter Redheimer, the receipt whereof is hereby acknowledged, hath given, granted, bargained and sold, and by these presents doth give, grant, bargain and sell to said Peter Redheimer, in actual possession now being by virtue of these presents, his heirs, executors, administrators and assigns, the following property, to wit: Three negro slaves, named Polly, Hannah and Thomas ; also, one pair of mahogany card tables, one mahogany work table, one large mahogany dining table, two dozen sitting chairs, one carpet, two plain brass dogs, with fender, shovel and tongs, tea tables, cradle, two bedsteads and bedding, three feather beds, one mattress, one chest of drawers, bed clothes, curtains and bed room furniture, and mahogany side board, tea and dinner set of China, one safe, together with kitchen furniture; also, with the future issue of the above mentioned slaves, and increase of such as are females. To have and to hold the said recited property, with the future issue and increase of the above named female slaves, unto the said Peter Redheimer, his heirs, executors, administrators and assigns ; subject, nevertheless, to such trusts, and to and for such uses, intents and purposes, as are hereinafter limited, declared and expressed, of and concerning the same. That is to say, in trust, to permit "and suffer the said Charles, and Rachel Simons,, his wife, to have, use, occupy and enjoy the above granted premises, or to receive the interest, income and emoluments arising therefrom, for and during the joint natural lives of them, the said Chqrles, and Rachel Simons, his ivife, without being subject or liable to the debts, control or engagements of the said Charles, and Rachel Simons, his wife; and from and immediately after the death of either of them, the said Charles and Rachel Simons, then in trust, to permit and suffer the survivor of them, the said Charles and Rachel Simons, to have, use, occupy and enjoy the above granted premises, or to receive the interest, income and emoluments arising therefrom, for and during the life of such survivor; and from and immediately after the death of such survivor, then in trust to and for the use, benefit and behoof of the issue of the said marriage, if more than one, as tenants in common, and not as joint tenants, their heirs, executors, administrators and assigns; and if but one, to that one, and his or her heirs, executors, administrators and assigns, free, clear and absolutely discharged of and from all and any 
      
      further truts whatsoever. And lastly, it is hereby covenanted and agreed, by and between the said Charles and Rachel Si-mons, and Peter Redhimer, that at any time token it shall appear beneficial, or for the interest of the said Charles and Rachel Simons, to sell or dispose of any of the above mentioned property, that he, the said Peter Readhimer, mil sell and dispose of the same at their joint request, or at the request of the survivor of them, and vest the proceeds in other property, which shall be immediately subject to the operation of all the trusts and uses expressed and declared in this indenture. In witness whereof, the parties to these presents have hereunto subscribed their signatures and affixed their seals, at Charleston, So. Ca., the district aforesaid, the day and year first above written, and in the fifty-third year of America Independence.
    Charles Simons, * l. s.
    R. Simons, l. s.
    Peter Readhimer, Trustee, l. s.
    Signed, sealed and delivered, in the presence of us, the words, “ and if but one, to that one, and his or her heirs, executors, administrators and assigns,” being first interlined above the seventh line, on the opposite side.
    John Rivers. Harriet A. Readhimer. Thomas E. Deveaux, Mathew Muggridge, Witnessesfor Simons. For Trustee.
    
    South Carolina.
    
      Charleston District.
    
    Thomas E. Deveaux, being duly sworn, made oath that lie was present, and saw Charles Simons, R. Simons, and Peter Readhimer, trustee, sign, seal and deliver this instrument of writing, for the uses and purposes therein mentioned, and that he, with John Rivers, Harriet A. Readhimer, and Mathew Muggridge,' witnessed the same.
    Sworn to, before me, this 9th October, 1829. Recorded 9th October, 1829.
    Wm, Ed. Hayne, Q,u. & N. P.
    Secretary of State’s Office, Charleston, So. Ca. Dec. 29th, 1841.
    The foregoing is a correct copy of record in this office, in Miscellaneous record book, H. H. H. H. H., pages 413, 414. Examined and certified by
    THOMAS S. JONES,
    
      Dep. Sec’ty. State.
    
    
      ■ Deed of 22th October, 1836.
    State of South Carolina,
    
      Charleston District.
    
    Know all men, by these presents, that I, Charles Simons, of the District and State aforesaid, in consideration of the love and affection I bear my son, Charles John Simons, my daughter Sarah Christina Myrick Simons, my daughter Harriet Ann Simons, and my infant son, James Peter Simons, all born of my wife, Rachel Simons, and also in consideration of the sum of one dollar to me in hand paid at and before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, do hereby alienate, transfer, convey and release all my right, title and interest in and to the following slaves, namely, 'Polly, Hannah, Thomas, Billy, John, James, Sarah and Robert, together with the future issue and increase of the females, unto Peter Readhimer, in trust, nevertheless, and to and for the proper use and behoof of my aforesaid children, Charles, John, Sarah Christina Myrick, Harriet Ann and James Peter, all minors, (the eldest being in her twelfth year, and the youngest in his second year,) or the survivor or survivors of them, should one or more of my said children die without issue and before coming of age, and to his, her or their lawful heirs forever. Whereas, by a certain indenture or deed of trust, made and executed at Charleston, in the District and State aforesaid, on the eighth day of October, one thousand, eight hundred and twenty-nine, by the said Charles Simons and the said Rachel Simons, his wife, three of the said slaves, namely, Polly, Hannah and Thomas, were duly conveyed to the said Peter Readhimer, in trust for the children of the said Charles and Rachel Simons, then alive, namely, Charles, John, Eliza Ann, and Sarah Christina Myrick Simons, but Eliza Ann haring died, and the infant child, James Peter, in this deed mentioned, having been born after and since the date of the aforesaid deed of trust, and the said Charles Simons, by and with the consent of his said wife, Rachel (since dead,) in her life time obtained, wishing to release and convey unto the said Peter Readhimer, in trust as aforesaid, the life estate of him, the said Charles Simons, in said deed of trust reserved, he, the said Charles Simons, hereby releases and conveys the said life estate, with all other rights, titles and interests in the said three slaves, and the issue of the females, from and after the date of the said deed of conveyance, unto the said Peter Readhimer, his executors and administrators, to and for the trust, uses and purposes aforesaid. And whereas, two of the negroes in said deed of trust conveyed, namely, Polly and her child Thomas, have been, since the date of said deed, sold and delivered to for and during the life time of the said Charles and Rachel Simons, according to the reservation in said deed, whereby the remainder alone can vest in the said Peter Readhimer, trustee as aforesaid. Now, the said Charles Simons ratifies and confirms said remainder in said trustee, vested by virtue of the aforesaid indenture or deeds of trust. And whereas, the slave Billy herein conveyed, has been purchased by the proceeds of the sale of the said life estate of the two negroes, Polly and her child Thomas, by him the said Charles Simons sold and delivered for the term aforesaid.
    Now the said Charles Simons, for the above consideration, hereby sells, transfers and conveys the said slave Billy, (being one of those above conveyed generally) unto the said Peter Readhimer, trustee as aforesaid, to and for the uses and purposes aforesaid. And whereas, all the slaves and other property in said deed of trust conveyed, came into the possession and ownership of the said Charles Simons by his marriage with his wife Rachel. In consideration of which, (with the considerations above mentioned,) he makes and ratifies this deed, to secure the said estate to the issue of her body. And whereas, certain articles of household furniture in said deed conveyed and specified, have been, since the date thereof, sold and delivered in part, and other articles purchased. Now, the said Charles Simons hereby sells, conveys and releases all his right, title and interest, to as many of the said articles as remain in his possession, (an inventory of which is hereunto annexed) unto the said Peter Readhimer, trustee as aforesaid, for the uses and purposes above mentioned.
    And whereas, the said Charles Simons has contracted certain debts to the amount of about three hundred dollars, which he requires to be paid out of the proceeds of the said estate by the said Peter Readhimer, trustee, as aforesaid ; and the said Peter Readhimer, on his part, undertakes the said payment, on the terms of this deed being fully complied with. And whereas, most of the said ne-groes are young and unable to work, producing no revenue to the estate, this conveyance is therefore made to the said Peter Readhimer, that he will sell any or all of the said negroes, at the best market price, and invest the nett proceeds, (after paying the said debts, and the funeral and other expenses of the said Rachel Simons,) in other property that will be more for the benefit of the said children; and in trust that he, the said Peter Readhimer, will take the said children in charge, and have them educated, as far as possible, out of the interest or revenue arising from the said trust estate. But should it become necessary for the said trustee to take a part or all of the said capital, for paying the maintenance, education and other expenses of the said children, he is hereby enjoined, and it is the true intent and meaning of these presents, that he, the said trustee, shall not pay away, for or on account of any one of the said heirs, more than his or her dividend of said principal. And in trust, that the said Peter Readhimer shall use all due economy in the management of the said estate, and cause to be educated and maintained each of the said minors, according to the best of his judgment, and agreeably to the means placed in his hands for that purpose.' To have and to hold the said slaves and other property herein conveyed unto the said Peter Readhimer, his executors and administrators, to and for the use and purposes herein before described, to wit, for the use of said minors, Charles Simons, Sarah Christina Myrick Simons, Harriet Ann Simons, and James Peter Simons, the survivor or survivors of them as aforesaid, and in trust that the said Peter Readhimer shall pay over to each of the said heirs, or the survivor or survivors of them, his, her or their portion or dividend of the said trust estate, should any remain after deducting all the aforesaid debts and expenses of maintenance and education. In witness whereof, the said Charles Simons, in execution and ratification of the above deed of conveyance in trust, and the said Peter Readhimer in acceptance of the said trust, have hereunto set their hands and seals, this twenty-ninth day of October, one thousand eight hundred and thirty-six, and in the sixty-first year of American Independence.
    Charles Simons, l. s.
    In presence of
    Peter Readhimer, l. s.
    The words “shall pay over” being interlined above the 14 line from bottom, and the name of “Harriet Ann Simons,” being interlined after “ Sarah Christina Myrick Simons,” between the 4 5 lines, 4th, 6th and 7th, from top, and between the 15 and 16 lines from the bottom.
    Thomas W. Malone, E. Thayer.
    South Carolina.
    Thomas W. Malone appeared, and made oath that he saw Charles Simons and Peter Readhimer, sign, seal and execute this instrument of writing, and that he, with E. Thayer, witnessed the same.
    
      Sworn to, before me, this 31st October, 1836.
    James Kingman, Notfy. Pub’c.
    
    South Carolina.
    
      Charleston district.
    
    Inventory of all the articles of household furniture in the within deed, conveyed to Peter Readhimer, in trust, as therein specified, and this day put in his possession, according to his own acknowledgement, viz: one sideboard, one table, one mahogany bedstead, one mahogany cradle, one fender with dog-irons, and some articles of kitchen furniture.
    Charleston, 29th October, 1836.
    I acknowledge the receipt of the above articles.
    Peter Readhimer.
    In presence of Thomas W. Malone.
    Recorded, October 31, 1836.
    Secretary of State’s Office, Charleston, So. Ca., December 13th, 1841.
    The foregoing is a correct copy, taken from record, in the office, in miscellaneous record book, R. R. R. R., pages 284, 285, 286, 287, the word “charges” erased on the 14th line from top of Srd^page. Examined and certified by
    Thomas S. Jones,
    
      JDep. Sec’y. Stale.
    
    BILL OF SALE.
    The State of South-Carolina.
    Know all men by these presents, That I, Peter Read-himer, trustee for the minor children of Charles Simons, for and in consideration of the sum of sixteen hundred dollars, to me in hand paid, at and before the sealing and delivery of these presents, by Edward M. Mood, (the receipt whereof I do hereby acknowledge,) have bargained and sold, and by these presents do bargain, sell and deliver to the said Edward M. Mood, Hannah, John, Jim, Sally, Robert, to have and to hold the said slaves, with the future issue of the females, unto the said Edward M. Mood, his executors, administrators and assigns, to his and their only proper use and behoof, forever. And I, the said Peter Readhimer, as aforesaid, my executors and administrators, the said bargained premises, unto the said Edward M. Mood, his executors and administrators and assigns, from and against all persons shall and will warrant, and forever defend, by these presents. In witness whereof, I have hereunto set my hand and seal, dated at Charleston, on the seventh day of November, in the year of our Lord one thousand eight hundred and thirty-six“v"n, and in the Di "*V ;V*t sixtieth year of the Independence of the United tt9 SSVv wm os *J JL States of America.
    Peter Readhimer, l. s.
    Trustee for the minor children of Charles Simons.
    Signed, sealed and delivered in presence of, the words “sixty-first” being first erased.
    Elisha Carson.
    . I hereby guaranty this bill of sale to be good, and free from all claims whatever, unto Edward M. Mood, his heirs, executors, administrators or assigns, forever.
    
      Witness, Thomas N. Gadsden.
    2 'b March 2nd, 1837. Peter Readhimer.
    South Carolina.
    Thomas N. Gadsden appeared and made oath, that he saw Peter Readhimer sign and execute the above guaranty, and that he witnessed the same.
    Sworn to before me, this 6th March, 1837.
    James Kingman, Not. Pub.
    
    South Carolina.
    Elisha Carson appeared and made oath, that he saw Peter Readhimer, trustee for the minor children of Charles Simons, sign, seal and execute the within bill of sale, and that he witnessed the same.
    Sworn to before me, this 6th March, 1837.
    James Kingman, Not. Pub.
    
    
      
      Grounds of Appeal.
    
    1. Because by the terms of the deed of 8th October, 1829, from Charles Simons and Rachel his wife, to Peter Readhimer, the trust was executed in them during their joint lives, until 26th October, 1836, when Mrs. Simons died — executed in Charles Simons, the survivor, after that date for life, until his death on 9th November, 1836, and after that event, the legal estate became vested in the plaintiffs, the children of the marriage.
    2. Because the power to sell by Readhimer, contained in the above deed, even if it could exist independent of the execution of the trust in Simons and wife at all, was a naked power, uncoupled with an interest, requiring the express joint assent of Simons and wife, if alive, and the assent of the survivor of these tenants for life, and that deed never contemplated a sale after the death of Simons. Any sale not completed before his death, by delivery and express assent, was not within the terms of the power, even if the personal power existed apart from the legal estate.
    3. Because the deed of Charles Simons to Peter Read-himer, dated 29th October, 1836, is inoperative, as far as it attempts to divest the legal rights of the minor children, which had accrued under the first deed of 8th October, 1829, and to permit it to be evidence of an express act of assent to the sale to the defendant Mood, is in effect to give it a legal operation.
    4. Because the sale to Edward M. Mood is not mentioned in the deed of 29th October, 1836, and therefore, this deed is no evidence of assent to that sale. The assent of a cestui que trust, to a sale by his trustee, must be a specific act, not a matter of implication. Thé execution of the power, and the act of assent, must be one contemporaneous transaction.
    5. Because the deed of 29th October, 1836, was a fraud on the first deed, and could not operate to destroy the rights vested under the first, either by an actual conveyance of those rights, or an enlargement of the power to sell. .
    6. Because the deed of 29th October, 1836, is not only fraudulent, but void for uncertainty and inconsistency, or if it can have a legal operation, confirms the rights vested in the minor children under the first deed.
    7. Because Simons did not know of the sale to Mood, and therefore, as matter of fact, never assented to that sale. He died the day before the bill of sale was purported to be executed, and was no party to it.
    8. Because the bill of sale executed by Readhimer, in possession of Mood, was on its face antedated, so as to be embraced within the period prior to the death of Simons, and a material alteration, or erasure, in a deed, is presumed to have been done by the party in possession, and the question of fraud was one of fact which should have been submitted to the jury.
    9. Because Mood’s title was a fraud, legally and morally, in law and in fact, on the vested rights of the minor children under the first deed, covered by the pretence of the execution of a power.
    10. Because the delivery of the deed of sale with the guaranty from Readhimer to Mood, took place in March, 1837, as is evident on its whole face. The delivery of the deed of sale, and the guaranty endorsed on it, were simultaneous acts, and the guaranty is dated in March, 1837. The sale was for cash. The guaranty was required before the money was paid. The whole transaction intended to be in execution of the power, took place in March, 1837, when no power to sell existed, and no assent could be given.
    11. Because the transaction, independent of its being a moral fraud, was one practised by a trustee on his cestui que trusts, with a' view to sell their property by the fraudulent execution of a power, and without the intervention of the Court of Equity.
    12. Because Mood, the defendant, was a purchaser with notice of the fraud, and of the rights which were defrauded.
    13. Because his honor told the jury to find a verdict for the defendant on the facts.
    14. Because the verdict was against the whole law and the facts of the case.
   Curia, per

O’Neall, J.

The argument in this case has been rested on the ground, that the legal estate of the trustee was divested, and the trust fully executed, and therefore, his conveyance was inoperative. There seems to me to be some very mistaken views of our decisions prevalent at the Bar. They perhaps arise from all the decisions not being yet reported; and possibly from general expressions contained in some of the opinions delivered by myself. I know no better mode of putting the matter in a proper point of view, than first, by giving an extract from my opinion delivered in 1832, in the case of Porcher vs. Gist, which had the concurence of Johnson & Harper, the other Judges of the Court of Appeals, and then to recur to the cases of Pringle vs. Allen, and Ford vs. Caldwell, and place them in their proper points of view.

In Porcher vs. Gist, one of the questions made in the Court of Equity, was, whether, under an ante-nuptial settlement, conveying to trustees, for the joint use of husband and wife for life, after the death of either to the use of the survivor, and after the death of the survivor, to the use of the issue of the marriage, personal estate in the possession of the wife was liable to be seized in execution for her debts contracted after she was discovert 1 In reference to that question it was said, “it is true, the statute of uses applies altogether to trust in land, and that makes one distinction between trusts of real and personal estate. In the former, if the trust is not executory, or if it is not necessary to preserve the trust, that the legal estate should remain in the trustee, the statute executes the trust so soon as the deed is executed, and the legal estate vests in cestui que use. In personal estate, the legal estate remains in the trustee, until he executes the trust by delivering the possession to one capable of holding in himself or herself, a legal estate in property to the extent of the interest intended by the deed to be conferred. If the estate is to the use of a married woman, the legal estate remains in the trustee, during her coverture, for she is incapable of herself to hold a legal estate in personalty in possession, which would not vest in the husband. An estate to the joint use of husband and wife during life, may, in order to preserve the trust, not be executed by the delivery of the possession to the husband. But after a feme is discovert, the reason no longer exists, why the trust should not be regarded as executed to the extent of the estate intended to be conferred on her.” In Pringle vs. Allen, 1st Hill's C. R. 135, the same question, under similar circumstances, was presented to the Court of Appeals, and received from the Court the same answer which was given in Porcher vs. Gist. A trust in personalty, is a mere bailment, and looking to the law on that subject, the whole difficulty is removed. The bailor has a general property, the bailee a qualified one. So of trustee and cestui que trust in personalty, the trustee has a general property, and the cestui que trust, the qualified property ; and when to his qualified right of property, possession is added, it is complete to the extent of the interest carved out by the deed. Both are legal estates, and either might maintain trover for the conversion of the chattel by a stranger, as was decided in Watson vs. Pitts, at Columbia, May, 1831. This explanation will, I hope, make the principle on which the Court has proceeded palpable. In Ford, Trustee, vs. Caldwell, the deed there, as that here, was post nuptial, and conveyed to the joint use of husband and wife for life, not subject to their debts, and after the death of either, to the use of the survivor for life, and after the death of the survivor, to the use of the children of the marriage. From the words of the deed it was plain, that the actual possession of the cestui que trust of the slaves, was to accompany the trusts. The deed was made by the husband, he and his' wife were alive, and he had conveyed the slave to the defendant’s intestate. - Speaking of that state of facts, 3 Hill, 249, I said, “ I hold the trust was executed in the husband, at least for his life. For according to the deed, he was entitled to the possession of the slave; having this, he had both the legal and equitable estate for his life. For the trustee had nothing to do with it during this time ; he had delivered the slave to one who was under no legal disability; this was equivalent to a conveyance to him for the time he was to possess it. For the condition annexed to the trust, not to be subject to the debts or contracts of husband and wife, is void. The husband, having both the legal and equitable estate, could transfer it, which he did.” These observations, when read in con-section, with the case, are readily understood. They are the views of a Law Court, applied to the facts before them. The general property was in Ford, trustee ; but he parted with the right to possess it to the cestuique trusts, Swift and wife, for life. At law the wife’s being and rights are merged in the husband, and hence his possession for the joint use of himself and wife for life, made the property, for that time, his entire qualified legal estate, which he conveyed to Chur, and which the trustee at law could not dispute. In Equity, if the purchaser had notice of the trusts, the rights of the wife might possibly be protected.

These explanations are made to place this interesting subject in its proper point of view. In the case before us, there is really no difficulty. It is, in point of fact, a suit at law, for a supposed breach of trust, in a sale made by a trustee. The redress of this injury, (if there is any,) belongs to another forum. The conveyance here, was to the joint use of the husband and wife for life, upon the death of either, to the use of the survivor, and after the death of both, to the use of the children of the marriage, with a power to sell and reinvest, at the request of husband and wife or the survivor of them. The slaves were in the possession of Simons and wife during their ■ joint lives ;■ the wife died, and the husband by deed surrendered his life estate to the trustee, for the use of the children of the marriage, and requested the trustee to sell the said negroes and invest the nett proceeds, (after paying the debts and funeral expenses of Mrs. Simons,) in other property for the children, and to have them educated out of the interest and income, if possible; if not, to apply so much of the share of each to that purpose as might be necessary. Under this authority, the trustee sold on the 2d of November, and Charles Simons, the grantor, died on the 9th. After this statement there can be no doubt that the purchaser’s title is good. For the trustee had not only a legal estate in the property, but he had also a power to sell, and at law the title cannot be disputed. If his power was improperly applied, fraudulently used, or unnecessarily exercised, it may be redressed in Equity against the trustee; and if the purchaser had notice, he, too, may there he reached. The motion is dismissed.

Thompson, for the motion. Kunhardt, contra.

We concur. J. S. Richardson, Josiah J. Evans, A. P. Butler, D. L. Wardlaw.  