
    Marshall vs. Stephens.
    1. When a/me covert is empowered by deod to dispose of property by deod of gift or will, it can be disposed of in no other way; and a disposition of it by bill of sale is void.
    2. If the proof leaves it doubtful, whether a power of appointment has been legally or illegally exercised, the presumption in favor of meritorious claimants is, that it has been legally exercised.
    3. A trustee may contract with the cestui que trust, in rolalion to the trust property; such contracts will, however, be viewed with jealousy, and must be above all suspicion of fraud or imposition.
    Gilbert Marshall filed this bill in the chancery court, at Franklin, against John Stephens, Mary Stephens and others, children of said Mary and John.
    The bill charges', amongst other things, that John Stephens conveyed Alley, a slave, in trust to Wooldridge for the use and support and maintainance of Mary Stephens during her life; that she should during her life, have the power to dispose of such slave and her increase, by' deed of gift, or by will,, and if she did not dispose of them, then at her death the trustee should convey her and her increase to the heirs at law of said Mary. — that Stephens was then involved in debt, and that the conveyance was made with the intent to defraud future and existing creditors' — -that Mary Stephens conveyed the slaves to Wooldridge by deed, and that Wooldridge conveyed them for a full and valuable consideration to complainant, Gilbert Marshall, to whom the slaves were delivered, with the assent of said Mary Stephens; and that complainant was an innocent purchaser, in the fullest sense.
    This bill further states, that the deed of conveyance of Mary Stephens was lost or destroyed, and that-some of the children of said Mary have denied that such a deed had ever been executed, and were setting up a claim to the said Ally and her increase, now amounting to five in number. • The. bill therefore prayed, that complainant’s title to them be declared and established, and any title said Mary should be regarded as being possessed of, should be divested and vested in complainant.
    The defendants answered, and denied the execution of any deed for said slaves to said Wooldridge by said Mary, and urged that complainant was aware of the fact at the time of his pretended purchase; and denied all fraud in the original deed of trust executed by John Stephens to Wooldridge.
    The defendants filed a cross-bill, setting forth the' alledged claims of Marshall to said slaves; his wrongful possession of them, &c. &c., and prayed a decree in favor of the complainants in said cross-bill for said slaves and their hire.
    The following decree was entered.
    “Be it remembered that these causes came on to be heard on the 8th day of October, 1846, upon the original bill, answers, replications and exhibits and proof, and upon the cross bills, answers, replications, exhibits and proof in presence of counsel for both parties before the Hon. Terry H. Cahal, Chancellor, when it appeared to the court that about the 17th day of May, 1827, or some short time thereafter, one John Stephens, by his deed of trust, bearing date the day and year above mentioned, conveyed to one John H. Wooldridge, among other slaves a certain negro woman named Alley, upon trust that said John H. Wooldridge should hold, use and possess said negroes and increase for the use, support and maintainance of Mary Stephens, wife of the said John Stephens, free of the debts, contract or control of him, the said John Stephens; that said John H. Wooldridge was to hold and possess said negroes for the use aforesaid, upon the trust aforesaid, during the life of said Mary Stephens, and at her death, if not disposed of by her previously, either by will or deed of gift, said Wooldridge was to convey said negroes with their increase to the heirs at law of the said Mary Stephens, excluding her husband, the said John Stephens. That on the 30th day of November, 1829, the said John H. Wooldridge by his bill of sale of that date, sold and conveyed said slave Alley, and her child Jane, born subsequent to the date of said deed 6f trust to the said Gilbert Marshall, who together with those claiming under him have been in the peaceful and uninterrupted possession of said slave Alley, and her increase from the date of said bill of sale to the time of the filing of the bill in this cause. It also appeared to the court, that between the date of said deed of trust and the date of said bill of sale to Marshall, the said John Stephens had debts in existence contracted before and after the date of the deed of trust, and that about the time of the bill of side to 'Marshall, or some months previous thereto, the said Mary Stephens was harassed by said debts. It also appeared that for some time before the sale to Marshall, the said Wooldridge claimed to have the absolute title of said slaves Alley and Jane, under some arrangement between himself and said Mary Stephens for the purpose of paying said debts. It also appeared to the court that when Marshall was negotiating with Wooldridge for the purchase of said slaves Alley and Jane, the said Mary Stephens had knowledge of the fact and conversed with Marshall on the subject — raised no objection whatever to his purchasing them, set jip no claim to them, but persuaded him to make the purchase. The court is of opinion that these together with the other facts proven in the cause are sufficient to authorize the presumption of a due execution of the power vested in the said Mary Stephens, by said deed of trust, and to vest the absolute title to said slaves in said John H. Wooldridge ¿nd his vendee the said Gilbert Marshall, and the court declares and decrees that the acts aforesaid of the said Mary Stephens operated as a complete divestiture of all the right, title, claim and interest, either in law or equity under said deed of trust of the said Mary Stephens and her children, or heirs at law in and to said slaves Alley and her children. The court therefore orders and decrees that the cross bill be dismissed and that the complainants pay the costs thereof for which execution may issue, that the defendants to the original bill pay all the costs thereof that accrued after the filing of the answers for which executions may issue; and that.said Gilbert Marshall pay all the costs of his original bill that accrued up to the filing of the answers including the costs of the answers for which an execution may issue.”
    From which decree an appeal was taken to the supreme court.
    
      Thomas N. Figures, for the complainant.
    It is contended on behalf of the complainant in the original bill that, the proof'in the cause shews that John Stevens at the time he executed the deed of trust of the 17th of May, 1827, to John H. Wooldridge was indebted to some extent, and had not a sufficiency of means lefttopay and satisfy such indebtedness after' the conveyance to Wooldridge, and the other conveyances for the benefit of his children made about the same time. That after the execution of said deeds, he contracted other debts; and in the latter part of 1827 and in 1828, the said John was much harassed by the officers of the law. That in 1828, ■ several attachments were issued at the instance of his creditors and some ten of them were levied by a constable on a slave named Peter,, conveyed by the deed of the 17th May, 1847. That about the time of this levy, Mary Stevens, the benefíciary in the deed of trust actuated by a fear that if the' creditors of John Stevens were not satisfied, they would levy upon and sell the property conveyed to her use, or sell some of the negroes conveyed by other deeds to the use of her children , either executed the power given her under the deed of the 17th of May, 1827, and made a deed of gift of two of the slaves, Alley and child to John H. Wooldridge — or else she attempted and intended to execute such power by making a bill of sale of said two slaves, Alley and child to John H. Woold-ridge in consideration that said Wooldridge had assumed to pay and did pay debts of said John Stevens to the amount of $350. That said Wooldridge afterwards on the 30th November, 1829, sold said two slaves to complainant at the price of $400, who held adverse peaceable and uninterrupted possession of them until about the commencement of this suit.
    If the property retained by John Stevens was insufficient to pay the debts he had contracted before the deed of trust, and it was necessary afterwards to sell these negroes to pay them, although the amount of such debts may have been less than the value of the negroes, the complainant is entitled to them under the statute of limitations and bill of sale from Woold-ridge as against John Stevens and Wooldridge the trustee; the deed of trust being fraudulent and'void as to such creditors. The right of Mary Stevens to the negroes never attached to any thing more than the surplus after paying the debts, and for that she would have to look to her trustee.
    On the other hand if the debts were contracted after the deed of trust, and Mary Stevens actuated by a fear that unless they were paid, the creditors would levy upon and sell some of the negroes which had been conveyed to her children, or if from a desire to release her husband from his embarrassments she determined to execute the power given her in the deed, and attempted to execute it by making a bill of sale or other conveyance to Wooldridge in consideration that he would pay the debts, a court of equity will aid such a defective execution.
    Where there has been a defective execution, or attempt at execution of a power, equity will interpose and supply the defect in favor of persons standing upon a valuable or meritorious consideration, such as a bona fide purchaser for a valuable consideration, a creditor, &c. 1 Story’s Eq. sec. 169. 1 Fonbl. Eq. book l,ch. 4, sec. 25, and notes (h,) (i,) (m.) Fothergill vs. Fothergill, 2 Freeman’s Rep. 256. Sug. on Vendors, vol. 2, p. 261; Chapman ms. Gibson, 3 Brown’s Chan. Rep. 229; Roberts vs. Stanton, 2 Munf. 129; Holmes vs. CogMB, 12 Vesey 215; Shannon vs. Broad Street, 1 Sch. and Lef. 63; Tollett vs. Tollett, 2 P. Williams 490; Cotter vs. Layer, 2 ib. 623; Sug. on Powers, ch. 6, sec. 1, p. 347-8.
    In Tollett vs. Tollett 2 P. Williams 490, the husband had power to make a jointure on his wife, “by deed under his hand and seal” and by his will under his hand and seal he devised lands to her. The court aided the defective execution and sustained the devise.
    So an answer to a bill in chancery stating “he does appoint, and intends by a writing in due form to appoint,” was held binding, although the power was required to be executed by writing under hand and seal, and' attested by two witnesses. Sug. on Powers, 360.
    A covenant referring to a power, is in respect of the consideration a sufficient indication of an intent to execute such power. Fothergill vs. Fothergill, 2 Freeman 256; Coventry vs. Coventry, 2 P. Williams 222; and Hollingshead vs. Hollingshead there cited. Sug. on Powers, 359, 360,361.
    Equity interposes and aids these defective executions upon the ground of accident and mistake. 1 Story’s Eq. sec. 169 to 179; Barr vs. Hatch et al., 3 Hammond Rep. 662, and those principles do not in the least interfere with those established in Morgan vs. Elam, 4 Yerg.
    If property-be conveyed to the separate use of a, feme covert during life, with power of appointment by deed of gift or will, and in default of such appointment,' — then to her heirs at law, — • and such feme covert produces the belief, by her. acts and conversation, that she has executed the power in favor of a particular person, and stands by and sees an innocent person contract for and purchase the property of her alledged appointee for a full consideration, and encourages the purchase, without disclosing the truth, she commits a fraud, and the loss occasioned thereby must fdll upon the innocent purchaser or upon her legal heirs.
    It is insisted that a court of equity, for this fraud, will compel an execution of the power in favor of the purchaser, and make the loss fall upon the heirs. See 1 TIov. on Fraud, 502-3. Also 2 Madd. R. 362, Am. edition.
    
      R. C. Foster, for the complainant.
    
      Nicholson, for the defendants.
    1. The complainant cannot attack the deed of settlement for fraud — he is neither a creditor of the grantor nor a purchaser from him, but derives his title through the deed of settlement. Besides, when the deed was made a sufficiency of property was reserved expressly for the payment of all existing debts. Hester v. Wilkinson, 6 Humph. 215.
    2. The deed of settlement being valid, the court will give effect to it according to the intention of the grantor to be fairly deduced from the whole scope of the instrument. 2 Kent 139; Morgan v. Elam, 4 Yerg. 447.
    3. The intention of the grantor was to provide a support and maintenance for his wife dining her life and for thé enjoyment of the fund afterwards by her children, with the power however of appointment by deed of gift or will amongst her children. Her power of disposal was restricted both as to the persons who might be appointed — -her legal heirs exclud-i ng her husband — and as to the mode of executing the power “by deed of gift or will.” This being the true interpretation of the deed, the complainant can have nó title by virtue of his purchase either from the trustee or the wife. 1 Rand. 47; 15 Ves.
    4. If the wife was not restricted to an appointment amongst her own children, she certainly was as to the modes of executing her power; it was to be done “by deed of gift or will.” This power could be executed in no other way than-in one of the modes expressed in the deed, a feme covert being capable of exercising no powers except those expressly granted. This is éhe settled doctrine in Tennessee however it may be in other countries. 4 Yerg. 446.
    5. A power of appointment by deed of gift does not authorize a conveyance by sale and deed of bargain and sale. 1 Rand. 47.
    6. If the wife conveyed the property to the trustee in consideration of debts of her husband assumed or paid by him such conveyance was void — because she had no power to convey except by deed of gift, because she was expressly forbidden to convey the property for the benefit of her husband; and because the relation between her and the trustee will not authorize such a conveyance. 1 Story Eq. sec. 321-2: 2 Story Eq. sec. 1595-6: 1 Story Eq. sec. 386.
    7. A court of equity will aid a defective execution of a power, but this will only be done in aid of the power as granted and when there has been an intention to execute it. 1 Story Eq. sec. 173.
    8.. The complainant cannot protect himself under the statute of limitations, because he got no more than the legal title from the trastee who had no interest and no power to sell; 2 Dev. Eq. 543; because the trustee could not sue in the face of this deed; 5 Humphreys, 443; because all the defendants, except Mrs. Stevens had only a remainder for which they could not sue until after the death of Mrs. Stevensjr-their interest was vested by the deed, but the right to possession postponed until after her death; and because the trustee was guilty of a fraud in selling to complainants. Lewin on Trusts 604-8. 3 P.'W. 125. The case of Williams vs. Otey decided at this term is distinguished from this case.,
    9. If the wife concurred or acquiesced in the breach of trust of the trustee in the sale by him to complainant, she is not precluded from setting up her rights. Neither a feme covert nor infant can concur in a breach of trust, although they may be bound by a fraud. Lewin on Trusts, 640-3. But the rule as to fraud of feme covert is not universal. Iiov. on Fraud, 502-5. 2 Mein 488.
    
      D. Campbell, for the defendants.
    The decree in this case is erroneous.
    1st. Because the feme covert had, under the deed of trust, no power to sell and convey the trust property for the payment of her husband’s debts,^s the decree assumes she had. The deed only conferred upon her the power to dispose of it in the one or the other of two prescribed modes, a will or a deed of gift; and upon the principles settled in the case of Morgan vs. Elam, 4 Yerg. 875, she had no separate rights and distinct powers, other than those so conferred upon her by the deed. In regard to the trust estate she was a feme sole, as far as the plain sense of the deed made her so and no further. Ib. 446. 3 John. C. R. 776. 2 Sergeant & Rawle. 3 Deveraux. Even under the decisions in England she had not the general power of disposition assumed for her in the case. Sugden on Powers, 116-7. Clancy on Rights, 304. 13 Vcsey, 446. 15 lb. 532. 10 lb. 590. 1 Ves. & Beams, 118.
    2d.- Because the power to make a disposition of the trust property by a deed of gift, does not include the power to dispose of it by a bill of sale. 2 Randolph, 49, Ellis vs. Baker.
    
    3d. Because the power to dispose of it by deed of gift, did not authorize her to dispose'of it, even by parol gift. “If a writing be required,” says Sugden on Powers, 211, “a disposition by parol will be invalid, although the property might be so disposed of.”
    4th. Because, if there were an execution of the power of disposition by a bill of sale, or a verbal sale, for the payment of the husband’s debts, the court cannot regard it as merely a defective execution of the power, aid it as such, upon the ground, that the court will assist the defective execution of the power. For under the principles of law, on the subject of the separate rights and distinct powers of femes covert, as settled in Morgan vs. Elam, either of those cases is the case of a non-execution of the power given, and not of a defective execution of it; and courts of equity have no jurisdiction to aid a non-execution of a power. Sugden on Powers, 392. This court said, in Morgan vs. Elam, 4 Yerg. 452, of the distinct powers of Has, feme covert, “She must pursue the express authority ; all beyond is void.” All distinction between different modes of appointment, and all restriction upon the power of disposition in femes covert are swept away, and the case of Morgan vs. Elam overruled, if the court can, upon the footing of aiding a defective execution of the specific mode of disposition by deed of gift, sustain a disposition by bill of sale, or parol sale, for the payment of the husband’s debts. But even upon the principle of the English decision, that cannot be done in this case. Sugden in his Treatise on Powers, under the head of the aid given in cases of defective executions, says, “Equity cannot uphold an act 'which would defeat the intention of the person creating the power. “Sugden, 211. ■ Equity never aids a defect in the execution of a power, and-here, under the law of this State, the mode of execution prescribed in the deed is the substance of the power. 1 Story’s Equity, 191-2, sec. 173.
    5th. Because the court cannot presume a valid execution of the power from lapse of time. Presumptions are only applicable against persons who are sui juris, and not against, infants and femes covert, Lewin on Trusts and Trustees-.
    5th. Because the pretended execution of the power, whether it were by deed of gift, or bill of sale, or by gift, or sale inpais," was procured from the feme covert, under such circumstances as renders it fraudulent and void against her. 1 Story’s Eq. sec. 230,243,321-2.' 4 Yerg. 443.
    7th. Because the registration of the deed of trust constituted legal notice to the complainant of its existence and contents ; and it was incumbent upon him, when lie undertook to purchase from the trustee the trust property, to ascei’tain that the feme covert had executed the specific power given her in the deed, and that under circumstances which would make such execution valid and obligatory upon her. Parkhurst vs. Alexander. 1 John.. C. R. 394. Story’s Eq. 405, sec. 403. It was, also, incumbent upon him to see that the deed of appointment was registered, as he derived his title from the original grantor, John Stephens, under the deed of trust through that deed of appointment. Sugden on Powers, 330. “So the purchaser,” says Story, “is in like manner supposed to have knowledge of the instrument under which the party with whom contracts, as executor, or trustee, or appointee, derives his power.” 1 Story’s Eq. 461, sec. 400. Jackson vs. Neely, 10 John. R. 374. Then the complainant took the trust property clothed with the trust; unless there had, before his purchase, been a valid execution by the feme covert of the specific power, and that fact he was bound to ascertain when he purchased. 1 John. C. R. 790, Maury vs. Bellew. 2 John. 509, Johnsonss. Slaggs.
    
    8th. Because the conduct of the/me covert does not deprive her of her rights in the trust property, upon the ground of estoppel. Wilkes vs. Fitzpatrick, 1 Humph. 54.
    9th. Because the length of time during which the complainant’s possession of the trust property was acquired does not bar her of her right thereto. “Persons not sui juris, as femes covert, and infants, cannot be precluded from relief, on the ground óf acquiesence during the continuance of the disability.” Lewin on Trusts and Trustees. Campbell vs. Walker, 5 Vesey, 608. 13 lb. 650.
    ' 10th. Because the evidence does not sustain the inferences of fact in the decree,' that the husband owed debts contracted before and after the execution of the deed of trust, and that the feme covert executed the power of appointment, by a conveyance of the trust property to the trustee, in consideration of the trustee assuming the payment of these debts.
    11th. Because the evidence authorizes the conclusion, that the complainant became a purchaser of the trust property from the trustee, with actual knowledge of the deed of trust, as well as of the feme covert never having exécuted the specific power of appointment; and such purchase constituted him a trustee for the feme covert. ■
    
    12. ‘Because the statute of limitations has not perfected the title of the complainant. The court held, in the case of Her-ron vs. Marshall; that when an executor sold and conveyed a negro slave without an order of court, the right of the legatee to the slave was not barred by the statute of limitations, as the executor was estopped by his own sale from bringing an action for the slave. So here the trustee’s sale and deed estop-ped him from suing for the slave, and, therefore, upon the principle acted upon in the case of Herron vs. Marshall, the statute of limitations cannot operate in this ease. 'The chancery court in New York, in the ease of Wood vs. Riker, 1 Paigo, 616, said that a right which accrued to a feme covert during cov-erture was within the exception of the statute of limitations. Here her right of action, either ^against the trustee or the purchaser, accrued during coverture, and therefore, is not barred. This case is distinguishable from Williams vs. Oley. There the trustee could have sued, and indeed did sue; here he could not. 2 Dev Eq. 5 John. C. R, 129.
    13th. Because even if the statute of limitations could be held to have perfected the title of the complainant, as against the feme covert, it does not follow that it has done so, as against her next of kip. For if she did not execute the power, or if its execution were defective and cannot be aided, or if it were void for fraud, then their rights in the trust property were of such a character as that they cannot be barred by the statute because their interest hi remainder is defeasible only by the execution of the power of the owner for life.
    
      Fogg, for the complainant.
   Turley J.

delivered the opinion of the court.

There have been many points made, and argued with much zeal in this" case, most of which we deem it unnecessary to investigate, because in our opinion, the case turns upon the question, as to whether there has been a legal execution of the power of appointment given by the deed of trust to Mary Stephens; and under which the plaintiff Gilbert Marshall claims. If there has been a legal execution of the power, the title to the slaves in controversy is vested in him, otherwise not.

It appears from the proof that about the 17th day of May, 1827, John Stephens conveyed to John H. Wooldridge among other slaves, a negro woman named Alley, upon trust, that he ^should hold, use and possess, her and her increase for the use, support and maintainance of Mary Stephens, wife of him the said John, during her life and at her death, if not disposed of by her previously, either by will or deed of gift, the said Wooldridge trustee was to convey to the heirs at law of her the said Mary excluding her husband.

At the time of the execution of this deed of trust, John Stephens was somewhat indebted, and afterwards became more so, and Mary Stephens was much harassed by these debts, the creditors attempting to obtain satisfaction of them out of the negroes conveyed for her use in the deed of trust. With the view of satisfying those debts and saving the trust property, which she supposed was liable for them, the proof shows that she made an arrangement with Wooldridge the trustee, who was also her son-in-law, by which he agreed to pay the debts, which he did by borrowing money for that purpose. The proof also shows, that Mary Stephens was desirous that none of the negroes conveyed should go out of the family, and that after Wooldridge had agreed to pay the debts, she -conveyed to him in writing, her interest in the negro woman Alley and her child Jane, born after the execution of the deed of trust; but whether this conveyance was a bill of sale or a deed of gift, the proof leaves wholly uncertain. That this conveyance was made without fraud or imposition on the part of Wooldridge, and with the free will and consent of Mary Stephens, there can be no doubt from the proof.

On the 30th day of November, 1829, and subsequent to the conveyance by Mary Stephens to John Wooldridge, he being unable to raise the money to repay the sum borrowed, sold for that purpose, the two negroes Alley and Jane to the complainant Gilbert Marshall, and conveyed them by a bill of sale. The proof shows that Mary Stephens knew of this sale, that she was consulted about it, did not object to it, set up no claim to the negroes under the deed of trust, but on the contrary, expressed her satislaction that Marshall was about to buy them, and held out inducements for him to do so. Subsequently Wooldridge, the trustee, died, and the convey-anee from Mary Stephens to him is lost or destroyed, having' never been registered.

Marshall kept possession of the negro woman Alley and Jane with their increase, which is now considerable, from the aforesaid date of the 30th day of November,' 1829, without let, molestation or complaint on the part of Mary Stephens, or others up to that of the 21st of September, 1843, when he finding that the conveyance from Mary Stephens to John H. Wooldridge had not been registered and could not be produced, became uneasy about his title to said negroes, and filed his bill to have it perfected, which is resisted upofi the ground, ■ that the conveyance of Mary Stephens to John H. Wooldridge, was not of such a character as is required by the power of appointment, and is therefore void and passed no title; and that under the trust she is entitled to have the ne-groes against Marshall during her life, and. her heirs after her death if she die without executing the power of appointment.

As we have seen, Mary Stephens is empowered by the deed of trust, to convey the negroes at any time during her life, by deed of gift, or dispose of them by will. We are satisfied that this power is to be strictly construed, and that under it she could not convey, by a bill of sale, but we do not think, (as has been argued) that the power of appointment is confined to an execution in favor of her • own children, but that it is a general power of appointment by will or deed of gift. We are also satisfied .that it must be proven that the power was executed by her, and'in a legal manner; and that it devolved upon Marshall to establish this fact. But it is a fact to be proven like all others; positive proof is not required, but such proof only as will warrant a legitimate presumption or inference that it exists. That Mary Stephens is a feme covert, places this case in no different position as to the weight of proof which would be required to establish this fact, from what it would occupy if she were a feme sole; for in executing the power she would be acting as a feme sole, and* the same rules and construction of evidence is applicable as if she were.

We hold it to be a sound principle, supported by both justice and reason, that when there is a power of appointment, which has been exercised, and there be a legal, and an illegal mode of exercising it, and the proof leaves it doubtful which has been used, the legal presumption in favor of innocent purchasers, or meritorious claimants is, that it has been the legal one. This proposition will not be disputed, and it is decisive of this case, unless we were to require positive proof of the legal execution; which we can upon no principle of law known to us, do. The. proof shows, that Mary Stephens conveyed by a written instrument her interest in the negroes, Alley and Jane to John H. Wooldridge. This she had the power to do, provided it was done by a deed of gift, but not by a bill of sale. The instrument not having been registered, and having been lost, or destroyed, it has become impossible to show which it was; shall we then presume that it was by deed of gift, or by bill of sale ? The presumption is always in favor of legal obedience and never against it; and moreover, upon what principle shall it be presumed, that the execution of the power was by bill of sale rather than by deed of gift? The title of personal property passes as well by one as the other, and there was no reason to induce the use of the one which was illegal, in preference to the one which was legal. That Wooldridge paid the debts, which were embarrassing Mary Stephens in the enjoyment of the trust property, is no argument in favor of the presumption that the conveyance was by bill of sale, but in our judgment the reverse; it is shown that the debts were not of equal value to the negroes conveyed; the payment of them then could only have been inducement to and not consideration for the conveyance; for if it had been the consideration the negroes would have been sold to the best purchaser. But Wooldridge was the son-in-law of Mary Stephens; she was desirous of keeping the negroes in the family, and also of procuring others; she was apprehensive they might be sold for the purpose of paying the debts; to do this it' was necessary that the debts should be paid and paid by Wool-dridge, and in consideration of his doing so, she agreed to give and did give to Mm the negroes Alley and Jane, and did not sell them to Mm; the fact that Wooldridge paid these debts constitutes him a more meritorious donee than he would otherwise have been, and the more thoroughly entitled to the aid of a court of chancery in establishing the execution of the power: if he has the right, complainant, his vendee, Marshall, has as strong, if not stronger, claim upon the aid of that court for the same purpose. Had the cestui que trust in the present instance been a man instead of a woman and feme covert, we apprehend a different rule for the government of the case would never have been contended for. But the rule is the same in either case; as we have already observed, though a feme covert, in the execution of this power Mary Stephens was acting as a feme sole, and the rules of construction are the same when a power is to be executed, whether the person executing it be a man or a woman. There is nothing in the objection that the gift is made to the trustee; a trustee may contract with a cestui que trust in relation to the trust property provided it be done in good faith, without fraud or imposition, and where a cestui que trust is empowered to give away the trust property, it may under the same restrictions be given to the trustee. We are satisfied that this, transaction between the trustee and cestui que trust in this instance, (to use a phrase from criminal law) was omni exceptione majores.

We therefore think, that the complainant by virtue of his contract of sale with John H. Wooldridge obtained the legal title to the negroes in controversy, and is entitled to the relief given him by the decree of the chancery court which is affirmed.  