
    Moody B. Stuart, Administrator of Leonard Crosby, deceased, vs. Robert P. Swanzy et al.
    A limitation by will in South Carolina, of slaves “to S. S., wife of J. S., for her sole and separate use, for and during the term of her natural life, and after her decease, to the lawful heirs of her body;” is a good limitation over to the children of S. S. upon her death; who will be entitled to recover the slaves from a vendee of J. S. after his wife’s death.
    Where several persons, as remaindermen, were jointly interested in certain slaves, and two of them, after the termination of the life estate, joined in a sale of the slaves to a third party; it was held, in a bill in chancery by the other remaindermen, to recover their interests in the slaves, and interest on their value for their detention, that their co-remaindermen who had parted with their interests in the slaves, were not proper parties to the suit; and that it was a proper case for the interposition of a court of equity, as well because of the sale by two of the remaindermen affecting the remedy at law, as for the necessity of an account to adjust the fractional interests of the other complainants.
    A will probated in a dilferent state, to be competent testimony in this, must be certified according to the act of congress, by the clerk of the court where probated ; a certificate to a will, therefore, probated in South Carolina, certified by the “judge of the court of ordinary,” to be a true copy as appears of record in his office, is not properly certified to be evidence in this state.
    In error from the district chancery court at Columbus ; Hon. Henry Dickinson, vice-chancellor.
    Robert P. Swanzy, Thomas N. Swanzy, and Elizabeth K. Swanzy, three of the five children of James Swanzy and Sally Swanzy, his wife, filed their bill, in which they state in substance, that James Thompson, of Spartanburg District, South Carolina, being possessed in his own right of considerable estate, died about the twentieth day of April, 1825 ; that he duly executed and published his will in writing, whereby he devised, among other things, as follows, viz: “ To Sally Swanzy, the wife of James Swanzy, to be for her sole and separate use, for and during the term of her natural life, five negroes, viz: Cassar, Phillis, Thirza, Dinah, and Eliza, and after her decease, to the lawful heirs of her body. Soon after making this will he died, about the year 1830, without revoking it. It was duly proved and recorded, in the proper office in Spartanburg District, South Carolina. That James Swanzy, by virtue of his marital rights, as the husband of Sally, became seized and possessed of the said negro slaves thus devised; that he had acquired an estate in the negroes for and during the life of the said Sally; that during the existence of this estate and the infancy of complainants, the said James brought the negroes to Monroe county, Mississippi, and after his wife, Sally Swanzy, the legatee, had departed this life, said James Swanzy, jointly with James T. Swanzy, and John A. Swanzy, who were also children of James and Sally Swanzy, and of age at the time, sold and transferred to Leonard Crosby the negro Thirza, with her increase; and that Crosby still holds them, by virtue of this pretended sale, and had notice of these facts when he bought.
    That complainants and James T. Swanzy, and John A. Swanzy, were the only children and heirs at law of James and Sally Swanzy.
    The will is made an exhibit to the bill. It was certified as follows, viz:
    “ The State of South Carolina, Spartanburg District.
    
    “I, Robert C. Pool, judge of the court of ordinary, in and for the district aforesaid, do hereby certify that the foregoing is a true copy of the last will and testament of James Thompson, deceased, and of the certificate of probate thereof, as appears of record in my office.
    “ Given under my hand and private seal, having no seal of office, this the 21st day of January, 1843. R. C. Pool,
    Ord. Spartanburg District.”
    To this was appended the certificate of the clerk of the court of sessions, for the Spartanburg District, of the official character of Pool, and that his attestation was genuine and in due form; and also the certificate of the judge of the court of sessions to the same effect; and to the official character of the clerk of the court of sessions. The clerk of the court of sessions in turn certifies to the official character of the judge of the court'of sessions.
    The bill prays that the slave and her increase may be sold, and three fifths of the price paid over' to complainants, and three fifths of the interest on the price from the time of sale to Crosby, also paid over to them. Crosby and James Swanzy were made defendants.
    To this bill there was a general demurrer, which was overruled.
    Crosby died, and the bill was revived against Moody B. Stuart, his administrator, who answered, admitting the purchase of the slave Thirza and her children, by his intestate, for $1200, which was a fair and valuable consideration. He was ignorant, and believed his intestate so to have been, of any last will and testament of James Thompson, as mentioned, and required full proof; insisted, if the exhibit of the bill were a regular transcript of the will, that James Swanzy was the true owner of the negro and her children; admitted that Sally Swanzy has departed this life; and insisted if complainants have any rights, they are at law; and prayed to have the benefit of his demurrer on final hearing.
    James Swanzy answered, admitting the making of the will, &c., and his sale of Thirza and her children to Crosby.
    The deposition of James T. Swanzy was taken and read by consent, on behalf of complainants; he states, that the testator, James Thompson, of South Carolina, married his mother’s aunt, and that Sally Swanzy was his mother; he identifies the negro, Thirza; states that his mother was married to James Swanzy when she came into possession of the negroes bequeathed to her; and that the sale to Crosby took place after her death ; states, that his father owed Crosby; and that Crosby knew of the manner in which said girl was held, he having told him of the will.
    lOn cross examination he says, that complainants are his brothers and sisters ;■ that his father exercised ownership over said slaves, and received the profits of their labor until they were sold; and supposes Crosby credited him on the faith of his being owner.
    This and the will was all the evidence read upon the trial; upon which the vice-chancellor decreed,
    That defendant deliver up Thirza and her increase to the clerk and master of the court, to be divided by him, if it could be done equitably, giving three fifths in value to complainants. If this could not be done, they were to be sold by him, &c.
    He further decreed that the clerk take an account of the hire of said negroes, from the time of sale to the time of decree; and that three fifths of the same be paid to complainants; and that the costs of this suit be deducted from the other two fifths.
    From this decree Swanzy appealed.
    
      W. P. and J. F. Jack, for plaintiff in error,
    Cited 2 Cruise, Dig. 93, 160; 4 lb. 326; Fearne, Cont. Rem. 76 ; 4 Cruise, Dig. 250; lb. 300-302, 310 ; lb. 335 ; 6 lb. 301 ; 4 Har. & J. 431; 2 Wash. 9; 1 Dali. 47; 3 Johns. Ch. Rep. 384; 1 Day, 229; 1 Bayley, 453; 1 McCord, Ch. 60; 1 Nott, & McCord, 69; Fearne, Cont. Rem. 461, 466, 490; 2 Roper on Leg. 353, 393; Cudworth v. Thompson, 3 Dess. & Russ. 256; Coop. 780, 800; 4 Term Rep. 431; 5 Ib..431, 521; Newell v. Newell, 9 S. & M. 799, 3 Phil. Ev. 1125, and authorities cited; 3 Leigh, Rep. 816 ; 12 Serg. & Rawle, 203; 2 Pick. Rep. 448 ; 4 New Hamp. R. 450 ; 3 Phil. Ev. 1122; Ward v. Wallace, 2 Spears, 786 ; Fonbl. Eq. 79.
    
      Adam G. Smith, for defendants in error,
    Cited Ranlcin v. Bradford, 1 Leigh, 163; 1 Eat. 424 ; 3 Burr. Rep. 1634; Clancy’s Rights of Mar. Worn. 263; Johnson v. Thompson, 4 Dess. 458; 2 Rop. Husb. & Wife, 152; 2 Peere-Wms. 316; 9 Yesey, 583; 5 Term Rep. 434; 6 Bac. Abr. 43; 3 Yesey, 120; 19 lb. 73; Fearne, Cont. Rem. 62; Ireson v. Pearman, 3 Barn. & Cress. 799; 3 Lom. Dig. 245 ; 4 Kent’s Comm. 20.
   Mr. Justice ThacheR

delivered the opinion of the court.

In 1825 James Thompson made his will in South Carolina, and died in that state in 1830. By that will, among other bequests, he bequeathed certain slaves “ to Sally Swanzy, the wife of James Swanzy, to be for her sole and separate use, for and during the term of her natural life, and after her decease, to the lawful heirs of her body.” James Swanzy removed with his wife, family, and these slaves, to Mississippi, and after the decease of his wife, he sold one of the female slaves and her increase, to Crosby, the intestate of Stuart, administrator.

The main objection to the decree in the case is put upon the ground, that the heirs of Sally Swanzy cannot take as donees under the will. But a question in all respects similar to this, arising under the laws of South' Carolina, has already met a minute and careful examination in this court, in the case of Newell v. Newell, 9 S. & M. 56, which resulted in the conclusion, that in South Carolina, limitations of the kind found in this will, are not held to be too remote.

Secondly, it was not necessary, and would have been improper to have joined the two brothers of the complainant^ as parties to the bill; for the allegations in the bill show that they had divested themselves of all interest in the slave and her increase, by uniting with James Swanzy in his sale to Crosby. These persons could have been compelled to have been made parties only upon the ground of possessing an interest in the subject, matter of the controversy. So, also, the very circumstance that they were not proper parties, and were not joined with the complainants, among other reasons, aided to constitute the jurisdiction of the chancery court complete over the matters made by the bill. Had they not have parted with their interest, perhaps the remedy might have been adequate at law; but certainly it required the peculiar powers of an equity tribunal to direct an account to be taken, and a division to be made of the fractional interests of the several complainants.

After the delivery of this opinion, the plaintiffs in error filed a petition for a re-argument, which was granted, the cause re-argued and again submitted, when

Mr. Justice Clayton

delivered the following opinion.

This was a bill filed to recover certain slaves under, and by virtue of the will of James Thompson, deceased, which purports to have been admitted to record in Spartanburg District, South Carolina. The sufficiency of the certificate upon which the will was read in the court below, is now called in question. That certificate was given by the judge of the court of ordinary, and states that the will was a true copy, as appears of record in his office. The act of congress directs that such certificate shall be made out by the clerk, if it be a judicial proceeding which is certified, or by the keeper of the records or books, which do not appertain to a court. H. & H. 791. In no case is it made the duty of the judge to give copies, and to certify to their correctness. As it is no part of his duty, his certificate is no compliance with the act of congress, and the paper was improperly received in evidence. The administrator in his answer disclaimed all knowledge of such will, and it therefore became incumbent upon the complainant to produce a copy in legal form. For want of the proper certificates of the 'officers, whose duty it was to give the certificate and attestation, and for the want of any proof which could be received as a substitute for that which is required by the acts of congress on this subject, the decree must be reversed, and the cause remanded.

We have re-examined the will contained in the record, and see no reason to change the construction placed upon it, by the opinion of this court formerly delivered. On the contrary, we believe that construction to be correct. We repeat it now, that the case may be finally disposed of in the court below, if the will be produced in an unexceptionable form.

Decree reversed, and cause remanded.  