
    ELIZABETH A. WHEELER & AL. vs. CLAUDIUS B. WHEELER & AL.
    If there he two clauses in a deed, repugnant or contradictory to each other, the first shall stand and the other he rejected.
    Cause removed from the Court of Equity, of Davie .County, at the Fall Term, 1845.
    The following case was presented by the pleadings.
    
      The plaintiffs are tlie infant children of Claudius B. Wheeler and Anne his wife. They sue by their.next friend, and state in their bill, that their maternal grandfather, Nathan Chaffin, made a deed of settlement, for their benefit, in the following words, to-wit:
    State of North Carolina, Davie County. December 27th, 1838.
    ' Know all men by these presents, that I, Nathan Chaffin, of the County and State aforesaid, have this day given to the children of my daughter, Anne J. Wheeler, which she now has-or may hereafter have, the following slaves, viz ‘. Sam,” &c. (naming them) “ which slaves are to remain in possession of my son-in-law, C. B. Wheeler, and his wife Anne J. Wheeler, to their own proper use, until the eldest child gets married, or arrives at the age of twenty-one years, for boarding, clothing and tuition of the said children, Avhich is to be agreeable to the property which they may have. _ And then the above slaves and increase to be equally divided bctAveen said C. B. Wheeler, his wife Anne J. and said children, so as for tlie said C. B. Wheeler and his Avife Anne J. to have a child’s part of said property, which they are to have, hold and possess, as long as they shall live ; and then to descend to the children of the said Anne J. Wheeler; and the said C. B-Wheeler and his wife Anne J. are to deliver each child’s part of the property to each child, when they get married or arrive to the age of twenty-one; and if all the children should die without having a ehild or children, then, after the death of the said C. B. Wheeler and his Avife Anne, the property to revert to my estate and be equally divided between my children, N. S. Chaffin, Elizabeth Chaffin and Mary W. Taylor, or their children after their death, which slaves I warrant and defend the title unto the above persons above expressed. If the said Anne J. Wheeler should have a child or children, after the division of the slaves, as above expressed, then the children, that have received their property allotted them, in the division as above, shall pay over to those born after the division, as above expressed, so as to make all the children of the said Anne J; equal in property.”
    'Which instrument was properly executed by the grantor, attested, proved and registered.
    The Bill goes on to state, that their father, C. B. Wheeler, became much indebted ; and under judgments and executions against him, certain of the slaves, covered by the above deed of settlement, were sold by the Sheriff as the property of their father, when their maternal uncle, N. O. Chaffin, became the purchaser ; that he has since made a conveyance of the said slaves to Giles Pearson, in trust for certain of his creditors. The plaintiffs further state, that Pearson is about to sell the said slaves,, to satisfy the trust; and that they are apprehensive that some person may purchase them, and remove them beyond the jurisdiction of this Court. And the plaintiffs further state, that their father has conveyed five others of the said slaves to William Locke, in trust for the benefit of certain other of his creditors ; and that Locke is about to sell the said five slaves; and that they are apprehensive the purchasers will take them beyond the limits of the State. The plaintiffs, in their bill, insist that their father was only a trustee unde]- the above deed of settlement, for their use and the use of any subsequent born children of their mother, and that he had no interest in the said slaves to convey to Locke, or that was subject to be sold by the Sheriff for his debts. The plaintiffs, in their bill, pray that the trust fund may bo secured for their benefit; and that the defendants may be enjoined from making absolute sales of the entire interest in the said slaves ; and also for general relief.
    Writs of injunction were granted, and, on the answers comiug in, the injunctions were ordered to be continued to the hearing. The defendants have answered, and they admit that the complainants are the infant children ■of Claudius B. Wheeler and Anne his wife. They admit that Nathan Chaffin executed the deed of settlement mentioned in the bill; and they insist, that, by the said deed, C. B. Wheeler had an estate for life in the slaves therein mentioned. They admit all the other material facts and charges, as set forth in the bill. But Locke and Pearson say, that they only intend to sell such interest in the said slaves conveyed to them in trust, as C. B. Wheeler had under the said deed of settlement ; which, they are advised, is for his life-time. They, however, submit to any decree the Court may deem right. The case was set for hearing on the bill and answers.
    
      Boyden,, for the plaintiffs.
    
      Osborne, for the defendants.
   Daniel, J.

The Court is called upon to put a construction upon the deed mentioned in the bill, and to declare the respective rights of the several persons claiming interests under it. We have examined this very curiously framed deed, and have come to the following opinion, as to the rights of the several parties claiming' under it:

First. That all the slaves mentioned in the deed, and their increase, are to remain in the possession of Claudius B. Wheeler, “ to his own proper use, until the eldest •child gets married or arrives to twenty-one years of age.” This clause in the deed, we think, gives the legal interest to C. B. Wheeler in all the slaves, until the happening of either one or the other of the events mentioned in it. The words contained in the next following-parenthesis in the deed, are not to be taken as declaring an immediate trust for the benefit of Wheeler’s children, for such a construction would make void the antecedent declaration in the deed, that the slaves were to be to CL B. Wheeler, “ Lo 1m own proper use, until,” &c. For if there bo two clauses in a deed repugnant or contradictory to each other, the fust shall stand and the other he rejected. 1 Touch. 88, sec. 7. Wc have said nothing of the gift in the deed to Mrs. Wheeler, because all the interest she bad was immediately vested in her husband, there being no separate estate, declared in the deed, for her benefit.

Secondly. On the eldest of the children of O. B. Wheeler and his wife Anne, coming of age or marrying, all the slaves mentioned in the deed are to be equally divided between C. B. Wheeler and all his children then born. And the. share in the slaves allotted to O. B. Wheeler In this division, “ he is to have, hold, and possess,” to himself, his executors or assigns, during his own life and the life of his wife, then remainder as to this snare, to the children of Anne Wheeler, his wife.

Thirdly. The settlor, expecting that the children would remain as members of their father’s and mother’s family, Until they either married or arrived at the age of twenty-one years, and that the slaves would all be divided among them, when the eldest child married or came of age (which •event would probably take placo before any of tbo younger children married) therefore attempts to appoint the father and mother guardians or trustees of their childrens property or shares in the said slaves, until they (the children) respectively marry or come of age. For the •deed says, “ and the said O. B. Wheeler, and his wife “ Anne, are to deliver each child’s part of the property to each child, when they get'married or arrive at twen- “ ty-one years of age. And if all the children should die •“ without having a child or children, then (after the death “ of C. B. Wheeler and his wife), the property is to revert •“ and belong to the other children of the settlor, to-wit: " N. S. Chaffin, Elizabeth Chaffin, and Mary Taylor,” &c.

It is very probable that the settlor intended, when lie penned the aforesaid clause in the deed, that if it should happen that all the children of his daughter, Mrs. Wheelev should die without children, then the said slaves should be to the use of Wheeler and wife for their lives, remainder to his (the settlor’s) other three children for life, then remainder to their children. But. it is unnecessary for us now to decide, what would, in law, be the effect of these ulterior limitations; for in no possible contingency could O. B. Wheeler (under the deed) get a larger interest in the slaves, than we have before mentioned. For, if all his (Wheeler’s) children should die without issue, and in his life-time, he could not, under the deed, take a life estate in all or any of the slaves by implication ; for the expróssion in the deed, (“ after the death of C. B. Wheeler and wife, the property is to revert”) would not give him a life estate, by implication, or in any other manner, unless it should be in _ right of his wife, as one of Nathan Chaffin’s next of kin.

Fourthly. The interest of C. B. Wheeler in all the slaves, until the period of division, was liable, at law, to be sold in execution, or assigned by him for the benefit of his creditors, or for his own benefit. And so, likewise, is the share of Wheeler in the slaves, to be ascertained by division at the proper time, liable to execution, or assignment by him, for the lives of himself and wife.

Fifthly. The complainants are the cestuis que trusts of the slaves, subject to the particular interest of their father in the same, as aforementioned. And we think, that they have a right, under the circumstances of the case, to have their interest in the same secured, so that it shall certainly be forthcoming to them, when their father’s interest in the said slaves, of any of them, shall have expired.

Sixthly. It is unnecessary, now, for this Court to remark upon the last clause in the deed of settlement; which directs, that those children, who may receive shares, on the division of the slaves as aforesaid, shall contribute to make up shares to any after born children of Mrs. Wheeler. For the bill is framed with a view only, first, to ascertain the exact interest of Wheeler in the fund; and, secondly, with a view, that the residue of the fund, after his interest is ascertained and taken out, may be secured for the benefit of the present and all after born children of Mrs. Wheeler. We think, that the injunction should be held up, and continued, until such security shall be given to the satisfaction of the Court.

Seventhly. It is also improper, upon these pleadings, to say, which of the two, Nathan L. Chaffin or Locke, will be entitled, upon the division of the negroes between Wheeler and his children, to the share that may fall to Wheeler and wife. At present, each of those persons is entitled to the profits of the negroes, purchased by him,, and will be so entitled as long as V/heeler would have been to the whole profits. But when the division shall take place, which of them is to be preferred or how they are to divide between themselves, must be determined at that time, or when they shall raise the question as between themselves.

Per Curiam.

Decreed accordingly.  