
    Johnson vs. Mitchell, et als.
    
    M. Currie having conveyed a large portion of her property to her children and her step-children, and they becoming offended thereat, the matters in dispute were referred to arbitration; the arbitrators awarded six hundred dollars to the step-children at the death of M. Currie, and that bond should-be given to them by the sons-in-law of M. Currie for the payment of said sum; the sons-in-law gave their bonds accordingly; thereupon, Mrs. Currie executed a deed in which, after reserving to herself a life estate in the property she then held, “she threw it into the hands of her sons-in-law” to meet the award at her death, and distribute the balance amongst her children: Held, that this deed vested a remainder in the sons-in law in trust to indemnify themselves against loss by their suretyship and in trtist for distribution, and was therefore irrevocable.
    Mary Currie, in the year 1815, then a resident of the State of North Carolina, a widow, of advanced aged, had one son, Wilson Currie, and three daughters, who had intermarried with W. Mitchell, John Love and James H. Bowman; she had also six step-children. She transferred to her children at this date, by bill of sale, the greater portion of her property. This produced some dissatisfaction on the part of her step-children, and a controversy arose between the step-children and children. The portions conveyed to her children amounted to about the sum of one thousand two hundred dollars to cuch, reserving to herself two negro girls, Milla and Flora, aryl some articles of personal property of small value. The matters in dispute ' were referred to arbitrators, who awarded that the sum of six hundred dollars should be paid to the six step-children at the death of Mrs. Currie, and that security should be given for the ultimate payment of this sum. Accordingly, Mitchell, Bowman and Love gave their obligations for the payment of the said sum of six hundred dollars at the death of Mrs. Cur-rie. Mrs. Currie then executed the instrument which is fully set forth in the .opinion of the court, affirming the previous gifts to her children, reserving to herself Milla and Flora during her natural life, and the balance of her property not transferred; and with a view to meet “the award of the arbitrators,” declaring that she “threw into the hands of” Bowman, Mitchell and Love, the negroes and property reserved, who were “requested” to discharge thé debt • , _ , , ,, , .... , , . i i six hundred dollars to the step-children at her death, to distribute the balance-, if any, equally amongst her children. Shortly after the execution of this instrument she removed', with her son-in-law Mitchell', to Rutherford county, State of Tennessee, and continued to reside with him till the year 1817, when she left the residence of Mitchell and went to the house of her son, Wilson, in the county of Maury. Prevailed upon, as she subsequently stated, by the importunities of Wilson Currie, she executed, on the 18th day of October, 1818, the following deed:
    “This indéntúre, made this 18th day of October, 1817; between Mary Currie; of the State bf Tennessée and county of Maury, of the one part, and Wilsoh Currie of the other! witnesseth: that in consideration of thé friendship, good will and affection which I bear to my son, I do give, and by thésé presents do covenant, convey and- confirm to said Wilson Currie all of the surplus bf thé property yet remáihing in. my hands, including two negro girls, Milla and Flora, together with the money and other articles, after paying the sum of six hundred dollars at my death, which monies are due to my step-children at that time, which Overplus at the aforesaid time I do warrant and defend to the said Wilson Cur-rie against any lawful claim or claims by, through or under me, or title derived from me or my heirs. In testiteony whereof I have set my hand and seal,
    Mary Curríe, [é. s.]’
    This deed was duly proven and registered in thé bounty Of - Máüfy. Mrs. Currie returned to Rutherford: In the year 1826 Wilson Currie executed a deed to William A. lohnson, reciting the deed executed to hitó by his mother in Í818, by which he conveyed his interest, devised by virtue of it, to said Johnson, and acknowledging the receipt of five hundred and fifty dollars therefor. William A. Johnson sold his interest for a valuable consideration to Milton Johnson, Alexander Johnson and Dávid Whitaker, for whose use this suit was instituted. ' In the spring of 1835 Mrs. Cur-rie died at the residence of Mitchell, in Rutherford, having with her all the property embraced in the deed of 1818 to Wilson Currie. S. W. Hodge and Anderson Mitchell applied i to the county court of Rutherford county for letters of administration, which were granted. The personal property, excluding the slaves, no't being sufficient to discharge the debt of six hundred dollars and other debts, the administrators presented their petition praying the sale of the slaves to pay the debts, and also as being necessary to effect a distribution among those entitled. The slaves, Milla and Flora and two children of Milla, and other personal property, were accordingly sold under an order of the county court of Rutherford, and produced the sum of two thousand one hundred and seventy-two dollars and eighty-eight cents.
    Upon this state of facts, W. Johnson, “for the use and at the proper costs” of M. Johnson, D. Whitaker and A. Johnson, filed his bill in the chancery court at Columbia, Maury county, on the 17th day of June, 1836, against Hodge and A. Mitchell, administrators of Mary Currie, deceased, against W. Mitchell, Bowman, Love and Wilson Currie, praying that all the interest of Wilson under the deed of 1818, upon settlement of the accounts of the estate and the payment of the six hundred dollars due the step-children, might be decreed to M. Johnson, A. Johnson and Whitaker.
    Mitchell, Bowman ancl Love answered and held up the deed of 1815 as transferring the property to them in trust to pay the six hundred dollars due the step-children, and to distribute the balance amongst the heirs at law of Mrs. Currie at her death, and insisted that nothing was conveyed by the deed made in 1816 to Wilson Currie. The administrators answered and declared a readiness to pay over under the decree of the court to those entitled.
    Wilson filed his cross bill, alleging that the deed to William Johnson was obtained by gross fraud and mlsrepresenta - .tion, and praying that it might be cancelled. This cross bill was answered and denied.
    The cause came on to be heard at the September term, 1839, before chancellor Bramlett, sitting at Columbia, who, being of the opinion that the deed of the 18th of October, 1818, was testamentary in its character, ordered, adjudged and decreed the said deed to be presented to the county court of Rutherford for probate as a testamentary paper, and that the testimony taken in this court relating to execution of said paper, together with such other proof as might be adduce;!, should be heard; and that the clerk of said county court should certify the same, when proven, to the chancery court; and being of the opinion that Wilson Currie was not entitled to the relief sought, dismissed his cross bill, and ordered that the administrators account, &c. &c., and that the clerk and master report, &c. &c. From this decree the defendants appealed to the supreme court,
    
      Pillow, for complainants.
    
      Meigs and Ready, for defendants.
   Reese, J.

delivered the opinion of the court.

It appears from the proofs in this cause that in 1815, Mary Currie, then of North Carolina, a widow, of advanced age, having four children, one son and three married daughters, transferred to them by bill of sale the greater portion, of her property, amounting in value to about the sum of one thous and two hundred dollars each. The property not so transferred consisted of two negro women. It seems tl: in consequence of these transactions a controversy between her and her children on the one side, and her children, six in number, on the other, to adjust which, erence to arbitrators took place, who awarded that o the untransferred property the step-children should be at the death of the widow, tho sum of six hundred dolía" and that for the ultimate payment of that sum security should be given presently; and accordingly Mitchell, Bowman and Love, the three sons-in-law of Mary Currie, gave their obligations for the payment at her death of the said sum of money. Whereupon the said Mary Currie executed, the following very inartificial instrument, to wit:

“Know all men by these presents, that I, Mary Currie, of the county of Person and State of North Carolina., out of my good pleasure, and for reasons not necessary here to. mention, have thought proper to state, sanction and subscribe the following particulars: In the first place, it is my g00cj pleasure to retain in my own hands, and to my proper aiwj pfily use, the property not otherwise given in bills of sale.to my children; that the thing, may be better understood, the following pieces of property I claim a free and unrestrained use of during my natural life, to wit, Milla, Flora, the proceeds'of- any sales that have been or that may be made, either public or private: no person shall have a right or claim to act or transact my businpss as relating to the above particulars, without my consent or approbation. Secondly, in order to meet the award of the arbitrators who sat in Caswell county, October, 1813, composed of said Van-hook, Daniel Mitchell and Gab. Lea, as that award respects me, my step-children and my own children, I agree to throw the above pieces of property into the hands of my sons-in-law, James H. Bowman, William Mitchell and John Love, who are requested to discharge the above debt immediately afte.i, my. death, and the balance, if any, to distribute equally among my own children. No part' of the above property shall be applied otherwise than to the wants and support of the said Mary Currie while she lives, and after death to be faithfully and immediately applied to discharge the amount of the above award. In testimony of my approbation tp the above instrument, I have set my hand'and seal the day and date above written. her
Test, Joseph Taylor, Mary jx| Currie, [Seal.]
Sam’e. McMaury. mark.
“JSÍ. B. All my property in mv hands not immediately in use I agree to confer with and to be party with my securities in managing to the best advantage for the benefit of all; and for the satisfaction of my children I promise to consult, and by and with the consent of those concerned as my securities, only to execute my more material affairs.” .[Signed and witnessed as above.]

As, by a subsequent instrument, Mary Currie gave the above mentioned property to her son, subject to the payment of the award, the question arises upon the first instrument above set forth, whether it be testamentary and therefore revocable, or whether it constitutes an effectual and valid transfer and disposition of the property mentioned. In substance the instrument is, “Know all men by these presents, that I, Mary Currie, agree to throw into the hands of my sons-in-law and sureties two negro women and other pieces of property, out of which, immediately on my death, they shall faithfully pay a debt due by award to my six stepchildren, and for which they are sureties, and the balance of the proceeds of said property they shall equally divide among my own children; but I reserve to myself the' use and enjoyment of the said property for my support during my natural life, agreeing, however, to consult with and act by the advice of my said sureties in all material affairs touching the same;” or more briefly still, “I hereby throw into the hands of my sons-in-law and sureties two negro women and other property, (they permitting me the use and enjoyment of the same during life,) at my death, to indemnify themselves as -my sureties, by paying the debt then due to my step-children by an award, and to divide the balance among my children, namely, their wives and my son.” The above, is a transaction inter vivos, and the legal effect of it is to reserve a life estate to the grantor, and to vest a remainder in the sons-in-law in trust, to indemnify themselves as sureties for the award by paying the same, and in trust to pay the balance to their wives and brother-in-law, the children of the grantor. That a life estate may be reserved and a good remainder thus created in slaves, is determined upon full consideration and deliberate argument in the case of Cains and wife vs. Marley, 2 Ter. Rep. 582. That the words “throw into the hands of my sons-in-law,” with the words which follow them, however unusual and in-, artificial, want the force and efficacy of the words give or transfer, &c., it would be difficult to maintain. They create a present interest in the remainder. The instrument in question is more than a mere deed of gift. It is based upon a valuable consideration, the debt to the step-children and the liability of the sons-in-law; its object is to pay the. former, and to indemnify the latter; and as to the surplus,, it is a donation in trust for all the children of the grantor. To hold it testamentary and revocable would defeat the whole intention of the arrangement and the entire scope of the instrument. It would be to permit Mary Currie to wrest from the hands of her sons-in-law and sui'eties the property thus thrown by her into them, so as to leave the stepchildren without the payment of their debt, her sons-in-law and sureties without their indemnity, and the children without the surplus of the remainder. This view, as to the construction and legal effect of the instrument, is decisive of the whole case, and renders it unnecessary to discuss any other questions which are presented by the record. The bill will be dismissed as well as the cross bill, and the complainants will severally pay their own costs. The costs of the defendants in the original bill will be paid by the administrator out of the funds in his hands.  