
    Elizabeth B. Calmes and others, Heirs of Sarah Calmes, v. James J. Carruth and another.
    By a will executed in the State of South Carolina, a testatrix declared as follows : “ X give to my daughter S. S. C., one-fifth of all my estate, both real and personal, during her natural life, and afterwards to her children, the heirs of her body, forever.” The children were in being at the time of the devise. In an action by the heirs of the daughter, claiming certain slaves who belonged to the testatrix: Held, that this was a donation of the slaves to the daughter for her natural life, and afterwards to her children, the heirs of her body, forever. A slave belonging to minors having been sold by their father, another slave was purchased with the proceeds. The father having made a surrender of his property, the plaintiffs, by their under-tutor, sued to recover the slave so purchased: Held, that the title of the slave, which vested in the insolvent, passed to his creditors : and that, admitting that minors, where their property has been illegally sold, or where a purchase has been made with their funds, can claim either the money or the property, yet they can make this election only after coming of age, such election being equivalent to an alienation of their estate or to a purchase of property.
    
      Appeal from the District Court of St. Helena, Jones, J. The defendant Carruth, appealed from a judgment rendered in favor of the plaintiffs, declaring them entitled to certain slaves sued for, and allowing them $1296, as damages against him individually. The judgment was in favor of the other defendant.
    
      Sheafe and Merrick, for the plaintiffs.
    The rule in Shelley’s case, does not apply to wills. Fonblanque on Equity, 62, and notes. 4 Vesey, 227. Croke Jas. 590. Noyes v. Richardson, 2 Mass. 63. The word children, is a word of purchase. 2 Atkyns, 220. 3 Mass. 360. Kent’s Comm. lect. 59, s. 4. Doe v. Laming, 2 Burrows, 1100. Read v. Snell, 2 Atkyns, 64. Champion v. Preaux, 1 Atkyns, 472.
    
      Baylies, for the appellants.
    Under the bequest in the will of Mrs. Braselman of one-fifth part of all her estate, both real and personal, to S. S. Calmes, during her natural life, and afterwards to her children, the heirs of her body, forever, the slaves in dispute became the absolute property of S. S. Calmes. See the rul e in Shelley’s case, and the commentary of Kent. 4 Kent’s Comm. 214, 215. Under the English law, the words which would create an estate tail as to freeholds, give the absolute property as to chattels. 2 Kent’s Comm. 354. 4 Ibid. 227-229'. Polk v. Fario, 9 Yerger, 209. 1 Bay, 453. 2 Ibid. 471. 1 Peere Williams, 143, 144.
   Bullard, J.

The plaintiffs claim, as heirs of their mother, of the syndic of the creditors of their father, William Calmes, certain slaves which they assert were bequeathed to her by Drusilla Braselman, in the State of South Carolina. They allege, that the testatrix in her lifetime, lent to their mother, as well' as to her other children, a certain number of slaves which were afterwards given by will, and that a part of the slaves in question were received in that way, and with that understanding; and, that after her death their mother, one of the heirs and legatees, retained them as a part of her portion.

The defendants answer, that the slaves were legally sequestered ; that they became the property of the creditors of William Calmes, by his surrender and its acceptance by the Judge; and they deny the allegations in the petition. In a supplemental answer they deny, that Drusilla Braselman was ever in possession or owner of any of the slaves except Coleman, but aver that they were the property of the insolvent, William Calmes.

It appears that Calmes had resided with his family in the State of Mississippi, and afterwards removed to, and resides in Louisiana.

The clause in the will of Drusilla Braselman, which contains the alleged bequest, is as follows : “ I give and bequeath to my beloved daughter Sarah S. Calmes, wife of William Calmes, one-fifth part of all my estate, both real and personal, during her natural life, and afterwards to her children, the heirs of her body, forever.”

Two questions are presented by this case: First. Whether under this clause in the will,.Sarah S. Calmes took only a life estate, with remainder over to her children, who it appears were in esse at the opening of the will, or a fee simple according to the laws of South Carolina. In the latter case, they vested in the husband; in the former, they descended to the heirs of the legatee. Secondly. Whether, in point of fact, the slaves now claimed are the same thus intended to be bequeathed.

1. It is ingeniously argued by the counsel for the appellants, in an elaborate brief, that the rule in Shelley’s case is applicable to the devise contained in this will, to wit, that when the ancestor by any gift or conveyance, taketh an estate of freehold, and in the same gift or conveyance an estate is limited, either me-diately or immediately, to his heirs in fee or in tail, the word heirs is a word of limitation of the estate, and not a word of purchase.

The present is a devise of personal property to Mrs. Calmes, during her natural life, and afterwards to her children, the heirs of her body, forever. Now it is shown, that the children, who now claim were in being at the time of the devise ; and, we think the use of the word children, though not specifically named, may well be considered as qualifying the expression which follows, to wit, the heirs of her body. In the case of Christmas and wife v. Weston, (not yet published,) where the remainder-men were named, and were in esse, we held, that the devise was limited to a life estate in the first donee, and that the remainder vested at the same time with the particular estate. The present case appears to us to come within the principle recognized in Kent’s Commentaries, as applicable to a case in which the heirs are spoken of as now living, which would clearly indicate the intention of the donor to give only a life estate to the first devisee. 4 .Kent, 221.

Such we think, would be the construction in South Carolina, according to the principles settled by the highest courts in that State. 1 Bay, 453-480. 2 Bay, 471. 2 Hill, 328-453. 1 McCord,. 60. 1 Wott & McCord, 69.

II. The identity of the slaves is the next question. It appears, that only two slaves were received by Calmes, from the estate of Mrs. Braselman, to wit, Coleman and Ben. The others, it is alleged, were advanced or loaned by the testatrix to her daughter, and were, after her death, taken and considered as a part of her legacy. It is further conceded, that Calmes sold the slave Ben received from the estate, and with the proceeds of the sale, together with other moneys received by him from the estate of Mrs. Braselman, purchased Juliette, who has been recovered in this case. Such being the fact, it is obvious that the plaintiffs cannot recover Juliette. The title to her is in the father, although he appropriated perhaps the funds of the plaintiffs to purchase her. If she had died, it would have been at the risk of the father, who owed them the value of the slave sold by him, and the money received for him from the estate.

Defendant, in a proceeding instituted in his own name, having caused certain slaves belonging to plaintiffs to be sequestered as the property of his debtor, an insolvent, subsequently qualified as syndic of the creditors of the latter, and in that capacity proceeded to advertise the slaves for sale. In an action by plaintiffs to arrest the sale, and for damages for the illegal sequestration : Held, that damages were properly allowed against the defendant individually.

Sheaf fe, for the plaintiffs.

The court in the opinion pronounced in this case, did not advert to the fact, that the sequestration which is the foundation of this action, was obtained by Carruth as a creditor, and not as syndic of the insolvent. The action is against Carruth individually. The petition states, by way of narration, and to identify the negroes, that they had been advertized for sale by him as syndic. Carruth cannot shield himself from personal responsibility, by alleging that he acted as syndic. 2 La. 201, 350. 6 La. 449. 2 Robinson, 346.

The evidence as to the other slaves has been strenuously com-batted, and the credibility of some of the witnesses attacked. This was left to the jury, and the verdict upon that part of the case, is not so unsupported by evidence as to enable us to set it aside as clearly erroneous.

It appears, that one of the negro children by the name of Joe, found by the jury to be property of the plaintiffs, was omitted in the judgment, and we have been urged to amend the judgment in that respect, and make it conform to the verdict.

The jury gave damages to the amount of $1296, against the defendant Carruth, individually. This is complained of as erroneous.

Same Case. — ON a Re hearing.

It is well settled in courts of equity, that where property has been purchased by a guardian with the funds of the ward, the latter may elect to take the thing purchased, or sue for the money used. So, where a trustee invests trust property or its proceeds in any other property, the cestui que trust has the option of taking the property so purchased, or of holding the trustee personally liable. Oliver v. Pratt, 3 Howard’s Sup. Ot. Reports, 405.

Merrick, on the same side.

The minors have the right to claim the money, or the property purchased. 2 Equity Digest, 474, et seq., Title, Resulting Trusts. 1 Johnson’s Ch. Rep. 450. 2 Washington C. C. R. 441. 4 Kent’s Comm. 305-6.

Baylies, for the appellants.

Morphy, J.

On a re-examination of the pleadings and evidence in this case we are of opinion, that the claim for damages against the defendant Carruth individually, was properly sustain■ed by the verdict and judgment below. The sequestration of the slaves belonging to the plaintiffs, was sued out by the defendant as a creditor in his individual name, some time before the appointment of a syndic to the estate of William Calmes. The proceeding was instituted under the insolvent law of 1817, which, without requiring bond, as in other cases of sequestration, gives this harsh remedy on the simple oath of a creditor, that be has strong reasons to fear, that the debtor may avail himself of the stay of proceedings, to keep his property from his creditors. B. & C.’s Dig. 488, 5 9. About three months afterwards, the defendant was appointed syndic and proceeded to advertise the slaves seized for sale as syndic, when the plaintiffs brought this action for the double purpose of arresting the sale, and of recovering damages against Carruth, for having illegally seized and detained their property. The petition states, that the slaves were seized at the instance of James J. Carruth, and although in speaking of the negroes, he is said to have advertised them for sale, as syndic, the claim for damages is distinctly set up against him in his private capacity. Admitting that Carruth was qualified to act as syndic, which is strenuously denied by the plaintiffs) on the ground, that he never gave any bond as such, nor was ever dispensed from giving one by the creditors, it is believed to be well settled, that no administrator can perpetrate acts to the injury of others, and shelter himself from personal liability under his representative Capacity, especially, where, as in this case, such acts were committed previous to his appointment. 2 La. 202. 6 La. 451. 2 Rob. 346. The defendant when appointed syndic, could have brought a petitory action ; and if he had feared the removal of the property, he might have had it sequestered, upon giving adequate security to protect the rights of the plaintiffs. Instead of doing so, he chose to resort to the step he took, in his own name as a creditor, when the slaves in question were not mentioned in the insolvent’s schedule, and when he well knew that they belonged to the plaintiffs, whose attorney he had been in a suit against one N. Berthoud, wherein they were adjudged to be their property. Under the circumstances of this case as exhibited by the record, we cannot say that the jury allowed excessive damages.

As relates to the slave Juliette, admitting that the evidence fully makes out that she was purchased by William Calmes, with funds belonging to his minor children, and that minors, when their property has been illegally sold, or a purchase made with their funds, can claim either the money or the property, yet, we apprehend, that they can make this election only when they become of age, because it is equivalent to an alienation of their estate, or a purchase of property, which acts they cannot do without the authorization of a family meeting. In the present case, all the plaintiffs except one, are still minors, and they are incompetent to ratify or approve of the purchase of their father. The title to this slave whieh vested in him, has passed to his creditors by his surrender.

It is, therefore, adjudged and decreed, that the judgment of the District Court be avoided and reversed, and the verdict set aside, as to the slave Juliette ; and it is further adjudged and decreed, that the plaintiffs recover and be quieted in their title to the following slaves, to wit: Phillis, Jordon, Mariah, and her two-children, Dublin and Eliza, Joe, Edinbormieh and Coleman } and that they have judgment against the succession of James J. Carruth, individually, for one thousand two hundred and ninety-six dollars, with costs in the District Court; reserving to them their right if any they have, to claim of the syndic, in due course of administration, the amount due by their father for money or property disposed of belonging to them ; the costs of this appeal to be borne by the plaintiffs and appellees.  