
    William Cloud vs. William L. Calhoun and others.
    
      Gift — Limitation of Estates — Heirs—Trusts and Trustees —Pleadings—Heed—Delivery—Fraud—Marital Rights— Marriage Settlement.
    
    A father, shortly after the marriage of his daughter, conveyed slaves to a trustee for the use of his daughter during her lifetime, and after her death without children, then for the use of her husband so long as he should remain single: “ but if he marry again, then they, with their increase, are to return and be divided among the remainder of my heirs.” Reid, that the limitation was valid, and that u heirs” meant such persons as upon the happening of th§ contingency would answer the description of heirs apparent of the donor.
    Upon the happening of the contingency, held, that the trustee, or his representative, might file a bill against the husband and heirs apparent of the donor for delivery and division of the slaves.
    
      Reid, that the limitation was not void as in restraint of the subsequent marriage of the son-in-law.
    It is not necessary to the validity of a deed of trust that the trustee should accept the deed, or even that he should know of it.
    Delivery of a trust deed to a witness to be recorded is sufficient delivery.
    A statement in an answer, exhibiting matter of independent deferfce, or matter of avoidance in a confession with avoidance, is not evidence for the defendant.
    Where a father, before delivery of slaves to his son-in-law, makes a deed of trust, settling the slaves on his daughter, with limitations, mere neglect on the part of the father to give notice of the deed to the son-in law, is no fraud upon his marital rights. •
    A deed from a father to a trustee, of property to be held in trust for the benefit of his married daughter and her family, is not n marriage settlement.
    BEFORE WARDLAW, OH., AT ABBEVILLE,
    JUNE, 1858.
    This case will be understood from the circuit decree of his Honor, Chancellor Wardlaw, which is as follows:
    Wardlaw ,Ch. William L. Calhoun, of Abbeville, and Margaret W. Cloud, daughter of William Cloud, of Chester, intermarried January 5, 1853. Afterwards, by deed bearing date February 1, 1853, the said William Cloud professed, in consideration of natural affection for his said daughter, to give and deliver to his brother-in-law, William Hemphill, as trustee for said daughter, and any children she might have, twenty-three slaves, including Bob and Mary, concluding with the following terms: “Which said negroes I do put into the quiet and peaceable possession of William Hemphill, for the support of said Margaret and her children, if any, during her life-time, and at her death, if no children, her husband, W. L. Calhoun, can, if he chooses, keep them so long as he remains single; but if he marry again, and my daughter leave no children, then they, with their increase, are to return and be divided among, the remainder of my heirs, unless my daughter, Margaret W. Calhoun, shall think best to make a will, if so, she is at liberty to will them to whomsoever she may think proper; and I, the said William Cloud, do warrant and forever defend the said negroes to William Hemphill, as trustee for the said Margaret and her children forever against all persons whomsoever claiming said negroes, according to the true intent and meaning of this instrument of writing.” When this deed was signed and sealed no person was present besides the donor and two attesting witnesses, and it was delivered to A. Brown, one of these witnesses, to be put on record in Chester, with a statement that no inconvenient de-spatch was necessary, and Brown kept it in his possession until January 17, 1854, when he made probate of its signing, sealing and delivery, and procured it to be registered in Chester. It was recorded in the Secretary’s office at Columbia, April 8, 1856, and in the Register’s office at Abbeville, May 4, 1857. Margaret W. Calhoun died April 9, 1855, without issue and without will; and said William L. Calhoun contracted a second marriage, April 26, 1857. William Hemphill died intestate on July 5, 1853, and William Cloud .acted as administrator of his goods and credits. The heirs apparent of said Williaifi Cloud are his five daughters.
    This bill was filed June 26, 1857, by William Cloud, as plaintiff, against William L. Calhoun and the daughters of plaintiff, with the husbands of such of them as are married, as defendants, for the delivery of the slaves above mentioned and account of their hire. The title of the plaintiff is stated alteruativel5r, as the representative of the trustee (in which character he. seeks delivery for partition among his children, who, it is alleged, are the persons intended by the term heirs in the instrument of gift,) or by way of resulting trust to himself for life, if heirs be understood technically. The children of William Cloud, in their answer, insist that they are now, by the course of events, entitled to the slaves, and they generally affirm the bill and co-operate with the plaintiff. William L. Calhoun resists altogether the plaintiff’s claim, and avers that the negroes were delivered to him in absolute property soon after his marriage with plaintiff’s daughter, and that he had no notice of the deed, nor of any restriction of his rights as owner, until about the time of his second marriage.
    Various points of greater or less importance are disputed between the parties. First, it is denied that plaintiff is administrator of William Hemphill, and it is argued that under 17 and 35 sections of A. A. of 1839, (11 Stat. 43, 48,) proof of title as administrator can be made only by certificate under seal of the Ordinary. The purpose of the Act in this respect, however, was to provide that a particular mode of authenticating grant of administration should be competent and sufficient, without at all infringing on other modes of proof. The Ordinary for Chester at the time was aged and imbecile, and kept his office in a confused and defective manner; but the warrant of appraisement, recording the inventory and ap-praisement, and the settlement of the administrator with the distributees, arid other evidence which it would be too tedious to detail, although it is all in writing and ready for use in case of appeal, entirely satisfy my judgment that plaintiff was appointed administrator of Hemphill. Then, it is urged that, conceding plaintiff is successor in office of the trustee named in the deed, the trust is only for the benefit of Margaret Calhoun and children, and terminated on her death without issue; and that plaintiff should not be permitted to stir a litigation between co-defendants in which he has no interest nor duty. There is some force in this technical objection, and it might have prevailed, if the children of plaintiff, who are the substantial claimants against defendant, Calhoun, had not adopted and appropriated the bill in this aspect, or if the defendant named sustained special disadvantage by the mode of procedure pursued. Where, however, all the parties in interest are before the Court and subject to its judgment, and the issues between them are presented in a form which prejudices none of them, it is of no great importance on which side of the record as plaintiffs or defendants the parties may be arrayed; and it would be sacrificing the substance for a shadow, to compel the parties to encounter the delay and expense of new although more formal litigation. The answer, or defence, of defendant, Calhoun, in the present proceeding is as efficacious, and his position in all respects as good, as if the allegations of the bill had been made by the children of plaintiff alone, or conjointly with their father. The Court does not encourage barratry, but the interference of the plaintiff is not pragmatical. It was provided in the deed that, on the death of Margaret Calhoun, without issue and will, the slaves were to return and be divided among the other heirs of donor, and if heirs mean children, then in the event which has happened, the duty of making distribution devolved on the trustee; and if full effect be given to the maxim, nemo hseres est viventis, then a trust resulted to the donor, or the property reverted to him either absolutely or until his heirs by his death, were manifested. The plaintiff, in his bilb states that he intended in the employment of the terms, “ remainder of my heirs,” to describe surviving children; and why could he not by bill waive his private right in behalf of his children, or assert his rights only for their benefit? The counsel for defendant, Calhoun, in another view of the case while disputing the title of plaintiff as trustee, and insisting that “heirs” must have its technical interpretation, conceded that if the property were given to this defendant, with valid limitations over, a trust for benefit of plaintiff resulted when the event on which the property was to go over occurred. Even if the word heirs is to be understood as used inaccurately to denote heirs apparent or children, the plaintiff still has such scintilla of right or duty as authorizes him to im-plead the defendants. I am of opinion that the donor in this instrument did employ the word in this secondary sense. It is plain that the word “ then ” in the context refers to the antecedent, “ if he marry again, and my daughter leave no children.” Archer vs. Jegon, 8 Sim, 446. And the other words, “increase,” “return,” “be divided,” “remainder,” all tend to fix the event when the property was to go over at a time when the donor must have contemplated the possibility of his being living, and having no heir strictly, but having surviving children; and donor intended to provide for these children whether he should be dead or living. It is always open to inquiry and construction whether a donor uses the word heirs in its- strict sense. Holman vs. Fort, 3 Strob. Eq. 71; Bailey vs. Patterson, 3 Rich. Eq. 158; ,2 Jarm. Wills, 12.
    An essential particular in the execution of this deed, delivery is disputed, but with no such plausibility as to require extended discussion. There is no evidence that Hemphill, the immediate donee, ever accepted the trust conferred on him or recognized the existence of the instrument; and it may be justly assumed that he never heard of the deed. Equity, however, never permits a trust to fail for lack of a trustee, and the assent of one named as trustee in an instrument of gift is utterly immaterial. The assent of those who become beneficially entitled is always presumed, in the absence of proof of repudiation. Parting with the possession of the deed by the grantor at the time of its execution, not as an escrow, even for the purpqse of recording, as in this case to thq witness Brown, is in itself delivery. Dawson vs. Dawson, Rice Eq. 224; Folk vs. Yarn, 9 Rich. Eq. 306; Ingraham vs. Porter, 4 McC. 198; Brooks vs. Bobo, 4 Strob. L. 40.
    Defendant Calhoun does not claim under the deed, and insists that the slaves were given to him absolutely by his father-in-law, and actually delivered to Thomas Crenshaw his agent and overseer, before the execution of the deed. Plaintiff, in January, 1853, a few days after the intermarriage of Calhoun and wife, promised to give to his daughter or son-in-law about twenty negroes, and in consequence thereof Mr. Calhoun sent a wagon .and team, under charge of his overseer, from Pendleton to Chester, to receive and transport the negroes. Crenshaw arrived at Dr. Cloud’s with the wagon Sunday evening, January 30, and was then shown by plaintiff some of the negroes, and was requested to abide the next day, that the plaintiff might attend a sale on Monday, 31, and purchase, if practicable, a substitute for Bob, one of the slaves who had recently married the female slave of a neighbor. Crenshaw tarried on Monday; and the plaintiff proceeded to the sale, and returned home about 4 o’clock in the afternoon, and then stated he could not purchase a negro to be put in Bob’s place, and showed Crenshaw the negroes to be carried away, and directed him to set out early the next morning. Crenshaw started with the negroes homewards about daylight on Tuesday, February 1, and reached the plantation of defendant, Calhoun, a week or ten days afterwards. Immediately after starting, Crenshaw received a letter from Dr. Cloud to Mr. Calhoun, dated February 1, 1853, afterwards delivered, stating — “ Mr. Crenshaw leaves this morning with the negroes, and I think will attend to their comfort on the road. I detained him one day to attend the sale of some negroes in order to get a man to send in Bob’s place, as he has a wife, but failed. If he conducts himself well and wishes to return next year, I may send another in his place.” The two subscribing witnesses to the deed, A. Brown and John W. Robertson, testify that it. was executed about 9 o’clock in the morning at a school house, without being able to fix the day of the week or month, but they, together with Catharine Westbrook, swear positively that the deed was executed while the negroes were in the actual possession of plaintiff, and state circumstances confirming their affirmation. The deed in the handwriting of plaintiff was produced by him when executed, and as the date is in'different ink, I suppose that the instrument had been drawn up some indefinite time previously, and that it was in fact executed on the morning of January 31, when plaintiff was on his way to the sale, and misdated. At all events, I conclude unhesitatingly that it Vas executed before the negroes passed into Crenshaw’s custody. It is by no means clear that the deed would have been ineffectual if executed after Crenshaw had received the negroes, and before he delivered them to defendant Calhoun, for Crenshaw may well be considered to some extent the agent of plaintiff for the transportation and delivery of the slaves.
    The bill, which is sworn to, states that the deed was executed on the date it bears, and it was urged in the defence that the plaintiff was thereby estopped in law and inhibited by good faith from proving the true date. This is an extravagance. The most honest men may commit mistakes, and no principle of law or honor prevents the acknowledgment and exhibition of innocent mistakes. Defendant Calhoun denies that he had notice of the deed until after the death of his wife, and urges that the failure to give him notice of the restrictions and limitations therein of his ownership amounts to fraudulent concealment avoiding the instrument. This denial is in response to a charge of the bill that this defendant acquiesced in the provisions of the deed; and his ignorance of the deed must be assumed until the fact of notice be established by evidence equivalent to the testimony of two witnesses. The answer of his co-defendants explicitly avers his knowledge of the provisions of the deed and acquiescence therein, but this is evidence against the respondents only and not against their co-defendants;‘and I may say in passing, that the frame of this answer is objectionable when it transcends the statements of the bill and replies to the answer of their co-defendant, previously filéd. No implication of notice from the registry of the deed can arise, for no statute requires the registration of such instruments. This defendant admits in his answer, and this is much the strongest evidence of notice offered in the case, that his wife did speak to him of her father having made some illegal settlement, and he proceeds to aver that on inquiry • of plaintiff he was assured the settlement was illegal and advised not to trouble himself about the matter. In my judgment the answer does not prove itself as to this latter averment, but the admission is too vague and equivocal to commit defendant. The bill alleges that plaintiff bought from defendant his possessory right in Bob, one of the slaves named in the deed; and the answer avers that this sale was absolute and unconditional for the price of $1,000. Here again the answer is not self-proving beyond simple denial that the possessory right only was transferred; but in every sale the presumption is that the whole property was sold in the absence oí contrary proof. The bill also alleges that Mary, one of the slaves, was returned by defendant to plaintiff after Margaret Calhoun’s death, and the answer states that Mary was given to defendant as a maid-servant for his wife soon after the marriage and long before the other slaves were delivered, and that defendant after the death of his wife, in compliance with her request in her last sickness, gave this slave, as of his own right to dispose, to his wife’s sister. Now the effect of this answer is to put plaintiff to proof that Mary was surrendered in recognition of his title, but certainly the answer is not of itself evidence of the circumstances of the original gift of this slave, nor of the motives and circumstances leading to her return. From the sort of slave, and from the fact that she was not one of those transported by Crenshaw, it is very probable that Mary was delivered before the other slaves, but the answer does not establish the fact. Except as to their bearing on the question of notice, the facts concerning Bob and Mary are unimportant in this case, for by concession these two slaves are under the control of plaintiff.
    In the trial of causes, I frequently encounter what is considered to be misconception of counsel as to the effect of answers. Positive denial in an answer of a fact stated in the bill is conclusive in favor of respondent, unless' rebutted by evidence equivalent to the testimony of two good witnesses ; and sometimes an admission in form is so qualified and explained in its integral parts as to be really a denial. But a statement in an answer exhibiting matter of independent defence, or matter of avoidance in a confession with avoidance, as much needs proof as any unadmitted allegation of a bill. In rare cases it may be difficult to determine whether a particular averment in an answer be responsive or suggestive of independent defence or avoidance; but the modern course of Courts of Equity is to restrict the effects of answers as evidence. Any other course puts the case of a plaintiff too much within the disposal of an unconscientious adversary. In this State it has been lately determined, that in bills for account by distributees against administrators, the answers of the latter that some of the chattels had been given to them by intestate, or that they had retained the moneys without making interest, needed extrinsic proof. Reeves vs. Tucker, 5 Rich. Eq. 150; Duncan vs. Dent, 5 Rich. Eq. 7. So on a question of advancement, defendant’s answer admitting that he had received the chattel given, but alleging that he had paid his father for it, is not evidence of the fact of payment.—
    ' lb. 15.
    Considering then that defendant, Calhoun, during the life of his former wife, was ignorant of the provisions of the deed, the question is presented, whether the omission to give him notice is a fraud, intended or operating to defeat the ownership he apparently acquired by the delivery of the slaves to him by his father-in-law soon after his marriage? There is no evidence thaf Margaret W. Calhoun had more explicit notice of the existence and contents of this deed than her husband. Concealment and forbearance to speak are not equivalent in their effect upon contracts. The distinction is well expressed by Cicero, as quoted and approved by Lord Mansfield in Carter vs. Boehm, 3 Bur. 1910: Miud est celare, aliud lacere ; ñeque enim id est celare quicquid reticeas ; sed cum quod, tu scias id ignorare, emolumenti tui causa velis eos, quorum intersit id scire. Good faith forbids any party by concealment of that which he alone knows, to draw the other into a bargain which he would avoid if hev possessed equal information. This principiéis applicable to all contracts, but with diminished force to donations, where the assent of the donee may be implied and his interest promoted, notwithstanding restrictions and limitations unknown to him maybe incorporated. As to gifts at least, Cicero’s definition of concealment restraining it by the motive of lucre or other base inducement, is altogether reasonable and just. The distinction between reticense and concealment is taken in our case of Rainsford vs. Rainsford, Dud. Eq. 57. There it was held that an executor was not bound to give other notice of legacies than by deposit of the will in the proper office for record, “but if he wilfully does anything to obstruct intelligence of its contents from reaching the legatees, or with a fraudulent intent refuses to answer any fair and reasonable inquiries where his answer would naturally lead the legatees to a knowledge of their rights, he is guilty of a fraudulent violation of trust. The least concealment with a view to defeat the trusts, is a violation of trust.” It would be difficult to maintain, in the present case, that any declaration or act of the plaintiff, after the execution of the deed, which constituted the delivery of the slaves and passed vested and contingent rights to others, could serve to defeat the deed; but if the absoluteness of the gift to be inferred from his tradition of the property had been limited by secret declarations at the time verbal or written, it might be that in a contest between him and his son-in-law, where the rights neither of creditors nor remaindermen were involved, the plaintiff would fail if proved guilty of concealment. No refusal, however, to answer reasonable inquiries nor other positive act whatsoever on the part of plaintiff tending to mislead the defendant, is shown or alleged. As is said in the last of our law cases on this subject, Lark vs. Cunningham, 7 Rich. 57, 376: “ Something more than merely the husband’s ignorance of what the father said or did must appear, to make it a fraud on his marital rights.” It is well said in the same case,“it is not unreasonable to presume that the husband is willing to accept a donation, although it máy be a limited one, and not as much as he might wish or hope for.” It is true that Mr. Calhoun avers in his answer, that “at no time before or after his marriage would he have condescended to accept the complainant’s bounty on the terms contained in that instrument,” but this sentiment from whatever source it may originate, idiosyn-cracy or accidental combination of circumstances, is not common to mankind, and cannot be the basis of judicial action. Nothing offensive appears in the terms of gift, and surely a gift of valuable chattels to one for life, with remainder to his issue by a particular wife, is better than no gift at all. The forbearance of plaintiff to inform his son-in-law of the terms may be explained by referring it to motives of prudence and delicacy, without any impeachment of his own good faith or the honor of the son-in-law. I forbear to engage further in the controversy, still sub judice as to the effect of parol declarations of the father qualifying the interest of the son-in-law in chattels delivered to him, made before or at the time of delivery, but not communicated to the latter. The question is discussed in Banks vs. Hatton, 1 N. and McC. 221; Bras-hears vs. Blaisingame, lb. 224; White vs. Palmer, McMul. Eq. 115 ; Edings vs. Whaley, 1 Rich. Eq. 310; Lark vs. Cunningham, supra ; Watson vs. Kennedy, 3 Strob. Eq. 1; Henson vs. Kinard, lb. 37 L ; Richmond vs. Yongue, 5 Strob. L. 46. The last two cases control my judgment, that where the-delivery of chattels takes effect from a deed of the father with limitations over or conditions, the whole title of the son-in-law is acquired under the deed, whether he is informed of it or not, and that the donor cannot enlarge this title by any subsequent delivery of the chattels to the disparagement of the rights of others conferred by the deed.
    It was argued that this deed was void as in restraint of marriage, and 1 Sto. E. J. 274 290, and many cases were cited, but this doctrine is considered inapplicable, as the deed was made after the marriage of the parties affected by it.
    It is ordered and decreed that the defendant, William L. Calhoun, deliver the slaves now in his possession, named in the deed bearing date February 1, 1853, with their increase, to the plaintiff, and account with him before the Commissioner for their hire since April 26, 1857; and that said plaintiff distribute said slaves, together with Bob and Mary, among his daughters, the defendants, and pay over to his daughters the amount of such hire and the value of the labor of Bob and Mary. Each party to pay his own costs.
    The defendant, W. L. Calhoun, appealed, on the grounds:
    1. Because the property claimed under the deed was absolutely given to defendant by the plaintiff, and delivered to him.
    2. Because the deed is a fraud on defendant’s marital rights.
    3. Because the property is not effectually given over and the condition is void.
    4. Because the limitation over is in restraint of marriage and void.
    5. Because the deed is a marriage settlement to which defendant, Calhoun, was no party, and not being recorded according to the Act of Assembly, is binding on the husband only where he has notice or is a party to it.
    6. Because “heirs” in the deed was used technically and not in a sense to denote children.
    7. Because the deed is fraudulent and void as to defendant, who was kept in profound ignorance of it, and both its existence and contents were concealed from him.
    
      8. Because the deed was not duly executed and delivered before the property passed into the defendant’s possession.
    9. Because the efficacy of defendant’s answer as proof was restricted to a mere denial of plaintiff’s allegations.
    10. Because on the death of plaintiff’s daughter, Margaret, without children, and the second marriage of defendant, Calhoun, the trusts of the deed ceased and determined, leaving the property discharged of all trusts and vesting legally in the remaindermen. His Honor, therefore, erred in holding that there was even a -scintilla of right in plaintiff as trustee to implead the defendants.
    Petigru, Noble, for appellant.
    
      McGowan, contra.
    
      First. — The deed was signed, sealed and delivered, and took effect, before the property was delivered either to the agent of the defendant, Calhoun, or to himself.
    1. The evidence is quite satisfactory as to the time when the deed was delivered.
    
      2. Delivery to the witness for the purpose of registry, is delivery to Hemphill the trustee. 1
    3. The assent and acceptance of Hemphill was unnecessary. — Dawson vs. Dawson, Rich. E. 243 Ingraham vs. Porter, 4 McC. 198 ; Jaggers vs. Estris, 3 Strob. E. 379.
    4. But if the assent of trustee is necessary, it will be presumed in this case, Hemphill was the brother-in-law of Cloud. He lived near him and he had made him trustee in other deeds.
    
      Second. — The deed having been legally executed and delivered, constitutes in all things the law of the case; provided, always, it was executed in good faith. — Richmond vs. Young, 5 Stro. 47 ; Henson vs. Kinard, 3 Stro. 371.
    We deny that there is in the whole case the slightest evidence of bad faith. The onus is upon the appellant, but he has shown none. It was the custom of Dr. Cloud to entail the negroes he gave his daughters. There was no secresy here, and there is nothing unusual or out of the ordinary course.
    1. Omission to record within three months is no evidence of bad faith, or legal objection to this deed. The omission was accidental, and not desired by Dr. Cloud. It was unnecessary to record. Brown vs. Wood, 6 Rich. E. 175.
    3. The ignorance of husband — mere forbearance to speak of the matter, is no evidence of bad faith. — Richmond vs. Young, 5 Strob. 46 ; Henson vs. Kinard, 3,Strob. 371; Lark vs. Cunningham, 7 Rich. 57 and 37 6 ; Moore vs. Gwyn, 4 Iredell Eq. 375; Collier vs. Poe, 1 Devreux, E. 55.
    3. The deed was not a marriage settlement within the meaning of the act, but a voluntary gift by the father after marriage. He had the right to give or not to give, and to place upon the gift any condition he pleased, always provided it was done in good faith.
    
      Third. The deed, then, being the law of the case, we maintain that the true construction of the deed requires us to give to the word “ heirs,” the signification of children. “The remainder of heirs,” evidently means, in reference to Mrs. Calhoun, “ the remainder of my children.” — Holman vs .Fork, Stro. E. 73 ; Lockwood vs. Jessup, 9 Const. 373 ; 4 Pickering, 389; 1 Devreux & Battle E. 396 ; 9 Mass. 307.
    
      Fourth. — The trust is not executed. The trustee — and he being dead — his administrator properly filed this bill. The trust is not executed until the property' is recovered and delivered.
    1. The property is personalty, and is conveyed absolutely to the trustee. The trustee has the legal title.
    3. The remainder over was a contingent remainder — a a double contingency — viz: that Mrs. C. should die without leaving children, and also without will. The purposes of the trust required absolute estate. Fletcher on Estates of Trustees 11. — Biscoe vs. Perkins, 1 Yes. and Beame, 485 ; Summerwith 
      vs. Littlehidge, 6 Taunt, 213; Harris vs. Pugh; 4 Bingh. 335 ; Poe vs. Passingham, 6 Barn & Cress. 305.
    3. Uses by the operation of the statute of Henry VIII, , became merged in the legal estate; but special trusts and trusts of chattels were not within the provision of the act; the former because the use as well as the legal interest was in the trustee; the latter because a termor is said to be possessed and not to be seized of the property. Lewin on Trusts and Trustees, page 9.
    4. The absolute estate being in the trustee, it survives to his administrator, and must remain there. If the fee became vested in the trustee, the inheritance remains in him, unless, perhaps, a shifting use should be created by the terms of the will or deed. — Ex Parte John Gadsden; South Carolina Law Journal,'343 ; 3 Rich. 467.
    5. A trust executed is where the limitations of an equitable interest are complete and final; in the trust executory the limitations of the equitable interest are not intended to be complete and filial, but merely to receive instructions for perpetuating the settlement at some future period. 'Lewin, page 25.
    6. The rule is where something remains to be done — as pay debts, make sales, or“ return and be divided.” — Willis on Trustees, 13 ; 1 Madd. Chan. 452 ; Pice vs. Burnet, Speer. E. 591; Holmer vs. Pitts, 2 McMullen, 298; Jones vs. Gole,%. Bail. 330 ; Jo,or vs. Hodges, Speers E. 596 ; Keilly vs. Fowler, 2 Fearne, p. 396, note 0.
    
      Fifth. The trustee was necessarily a party to the proceedings. 1 Daniel’s, C. P. 247. Martin vs. Martin, 2 Johnson, 238; Fish vs. Howland, 1, Paige, 28; Story Eq. P. Sec. 201, 209, and note.
    In equity, it is sufficient that all parties interested should be before the Court, either as plaintiff or defendant. Calvert on Parties, page 3.
    But when the whole case is out, and all the parties are before the Court, the rights of the parties will be adjudged. 
      thicker vs. Ling, 3 Stro. E. 210; Bank vs. Bose, 1 Rich. 294. It was proper that the bill should be filed in the name of the trustee; first, because the estate was in him for the purposes of recovery, division and delivery; and second, because the reversion would necessarily be vested in him, if the Court should hold that the word “heirs” should be construed technically, and on that account the limitation over should fail.
   The opinion of the Court was delivered by

Wardlaw, Ch.

I always regret to be the organ of this Court in affirming my own decrees on circuit. But from the large number of appeals from my judgments, I am obliged in the regular rotation of labor among the members of the Court to perform frequently this disagreeable duty. ' — "

On the points argued before me on circuit, my opinions were carefully and fully expressed; and I do not find on reflection that I can add much which is profitable.

,On some matters brought into discussion by the appeal, some remarks may be suitably made. It is urged earnestly that the deed of gift in controversy in this case is a marriage settlement, requiring by our statutes to be registered. Undoubtedly, every gift by a parent to his son or daughter, after marriage, partakes to some extent of the nature of a marriage settlement, as intended to provide for the sustentation of the child and any issue of the marriage. It is not suggested that such a gift in strictness of definition is a marriage settlement, for such settlement always proceeds on the consideration of marriage. But it is argued that the leading case of Price vs. White, Bail. Eq. 244, Carolina L. J. 297, followed by many subsequent cases, decided that a voluntary conveyance by a husband of his property to his wife and children was a marriage settlement, needing registration, and that every conveyance having substantially the same purposes should be put in the same category. If the doctrine of Price vs. White were considered open to discussion, opposite views might be reasonably entertained; but treating that doctrine as settled, certainly no case in this State has intimated that a gift to wife and children by other person than a husband was to be regarded as a marriage settlement. Indeed, in cases of post-nuptial settlement by a husband, on some new consideration proceeding from the wife, such as the renunciation of her inheritance, the Court has distinctly refused to apply the doctrine of Price vs. White; Banks vs. Brown, 2 Hill Ch. 558; Sibley vs. Full, McMull. Eq. 320; Napier vs. Wightman, Speer. Eq. 367. But it is a mere abuse of terms to call a donation by a father for the benefit of the family of his son or daughter, or by any third person, a marriage settlement. If a judge should j> give his law library to his son after marriage, with limitation over to his grand-son, who happened to be a practicing lawyer, would that be a marriage settlement? If a fond father should give to his daughter, Fanny, after her marriage, a gold goblet, inscribed with that name, with remainder to his granddaughter of the same name, would that be a marriage settlement? ' But really the Court cannot in proper respect for itself renew the discussion of settled points, however earnest and able may be the expression of dissatisfaction by counsel. It is quite clear from the cases cited supra, and in the circuit decree, that this Court never treated a post-nuptial gift, except by the husband of his own property,as a marriage settlement; and that on the contrary gifts by third persons, although in sustentation of the family, were uniformly considered not to be marriage settlements. Banks vs. Brown. This point is assumed, if not decided, in the cases of Lark vs. Cunningham, Henson vs. Kinard, Richmond vs. Youngue, Baskins vs. Giles, Rice, 315; LePrince vs. Guillemont, 1 Rich. Eq. 157, and other cases. ^

In the same connexion, it is strongly insisted that the deed in question was an underhand arrangement, in fraud of the marital rights of the principal defendant, and void because not communicated to him.

Peculiar opinions on the part of parties, or their advisers, cannot justify Courts in departing from the ordinary course of judgment. It is within the knowledge of members of the Court that some of the most learned lawyers and most honorable men in the State have pursued precisely the course of the plaintiff here; and we think it would startle the common sentiment of the people of the State, to announce from the seat of judgment that it was a fraudulent concealment in a father to settle property on his daughter without, conferring with his son-in-law. On this point, however, we are content with the reasoning of the circuit decree.

Again, it is urged that the limitation over in this case is void as in restraint of the subsequent marriage of the principal defendant. Without entering into doubtful disputations, it may be conceded that where a life estate, or greater interest, is granted to one, to be defeated on a condition subsequent if he marry, that the condition is void and the estate'unaffected by the condition. But here no estate whatever is conferred on Mr. Calhoun. An option or privilege of retaining the custody and enjoyment of the slaves while he remained widower of his wife, Margaret, is bestowed on him, but no defeasible estate for life, or otherwise, is bestowed. But if such estate" be conceded to be given to him, it is by express limitation to him while he remains single, and not on a condition to be void if he marry again. His second marriage is mentioned only to describe the time and event on which the property was to go over, and not to prescribe a condition defeating a larger estate previously given to him. I have not leisure to indulge in disquisitions about the nice distinctions between limitations and conditions, and content myself with referring to note 4 in Rop. on Leg. 797; Story E. J. sec. 396.

It is admitted that the limitation over is not void for remoteness, as it depends on the second marriage of one then in life; hut it is argued that on the interpretation given in the circuit decree to the word “heirs,” children might exclude grand-children, or remoter descendants of a decedent child of donor. It may be that the words of the decree, used in application to the actual state of things where all the children are surviving, are somewhat loose; but it was not intended to intimate that children would exclude others who might be heirs apparent under our statute of distributions. It is not a case where a contest arises between children and other descendants, by reason of the use of the word children, as in Ruff vs. Rutherford, Bail. Eq. 1; for the word describing the limitees over is “ heirs,” large enough in meaning to include all heirs apparent under our statutes of distributions. In strictness, the term heirs is inappropriáte to personality, and must from necessity be interpreted in a secondary sene. In this case, when the donor refers manifestly to his daughter, Margaret, as one of his heirs, and then speaks of the remainder of his heirs on her death, his meaning is transparent. I add to the authorities in the decree on the interpretation of the word heirs: 6 Cruise, Dig. 184; Bowen vs. Porter, 4 Pick. 208; Sims vs. Garnett, 1 Dev. & Bat. Eq. 394.

It is ordered and decreed that the circuit decree be affirmed and the appealed be dismissed. 1

Johnston and Dunkin, CC., concurred.

Jlppeal dismissed.  