
    Susan M. Cleary v. Andrew M’Dowall and others.
    Where a settlement of real estate was made to the use of husband and wife, during their joint lives, then to the use of the survivor for life, with limitations over, the surviving widow took a freehold estate for life.
    
      Where a woman, seized of a freehold in land for life, married, and during the cover-ture the land was levied on, and sold under an execution against the husband, who afterwards died, the widow surviving ; held that the purchaser only took an estate for the life of the husband, and at his death, the widow was entitled to the remainder of her estate.
    Before O’Neall, J., at Charleston, January, 1840.
    Trespass to try title. The facts were found, by a special verdict, to the following effect:
    The plaintiff, being seized of the land in question, conveyed it by deed of marriage settlement, before her marriage with one Graves, to trustees, “ in trust, (after the solemnization of the said marriage,) for the joint use and behoof of the said Samuel Colleton Graves and Susan McPherson, and their assigns, for and during the term of their joint lives, to permit and suffer the said Samuel C. Graves, alone, during the said term, to receive and take the rents, issues, and profits of the said real and personal property, to and for the joint use, benefit and behoof, nevertheless, of both of them, the said Samuel C. Graves and Susan; and from and immediately after the death of either of them, leaving issue alive of the said intended marriage, then to the use, intent, and purpose, that the survivor of them the said Samuel Colleton and Susan, and his or her assigns, shall and may, for and during the term of her natural life, have, take, and receive, to and for his or her own proper use and behoof, the rents, issues and profits of the said real and personal property ; and from and immediately after the determination of that estate, then to the use of the said trustees, or the survivor, or the survivors of them, for and during the life of the survivor of them the said Samuel Colleton and Susan, upon trust, to preserve the contingent remainders hereinafter limited from being defeated, and for that purpose to make entries, and bring actions, as occasion may require; but nevertheless in trust to permit the survivor of them the said Samuel and Susan, during the natural life of such survivor, to receive and take the rents, issues, and profits of the said premises, to and for his or her use and benefit, as aforesaid. And from and after the death of such survivor, then in trust to have and to hold all and singular the said premises, to and for the sole use, benefit, and behoof of the eldest son of the said marriage, living at the time of the death of the survivor of the said Samuel Colleton and Susan, his heirs, executors, administrators and assigns forever; and should there be no son living at the time aforesaid, then in trust to have and to hold the said premises, to and for the sole use, benefit and behoof of the eldest daughter of the said marriage, living at the time of the death of the survivor of them, the said Samuel Colleton and Susan, and to her heirs, executors, administrators and assigns forever; but in case that on the death of them, the said Samuel Colleton and Susan, there should be at the time of such death no issue of the said marriage living, then the said premises to the use of the said Susan, or her heirs, exer cutors, administrators and assigns, forever;” with other- contingent limitations, not material to the issue. After the marriage, Graves and the plaintiff entered on the premises, and received the rents and profits jointly, till Graves died, leaving one child of the mamiage living. The plaintiff then kept possession and enjoyed the rents and profits, and afterwards married Nathaniel Greene Cleary. Some years after, the land was taken in execution by virtue of a fi. fa. upon a judgment in Common Pleas against Cleary, and “ all the right, title and interest of the said N. G. Cleary in the same,” was conveyed, by the sheriff of Colleton, to the present defendants. Cleary died in December, 1838, and this action was brought by his surviving widow, to recover the premises and •mesne profits from January 1, 1839.
    The case being submitted on this finding of the facts, the Court ordered the postea to be delivered to the plaintiff.
    The defendants appealed, upon the ground that the plaintiff had had a life estate in the premises, which, by her marriage, vested in her husband, N. G. Cleary, and passed, under the sheriff’s sale, to the defendants.
   Caria, per Butler, J.

The deed under which the plaintiff claims in this case, has received a judicial construction in the case of Pringle et al. v. Allen, (1 Hill Ch. R. 135.) The question was, what interest Mrs. Cleary had in a negro which she held under the deed at the time of her intermarriage with Cleary; and it was held that she had a life estate, which was subject to levy under an execution against her husband. The negro, among others, was subject to a trust of a settlement, whereby a large number of negroes and some land (the land now in controversy) were conveyed by Mrs. Cleary to trustees, for the use of Samuel C. Graves, her intended husband, and herself, during their joint lives, and to the use of the survivor for life, and after the death of the survivor, then to the issue of the marriage. Neither the negroes nor the land were ever in possession of the trustees. Mrs. Cleary, at the death of her husband, (Graves,) was in the possession of the land, and in the enjoyment of the rents and profits. She had a freehold interest in it; not under an exe-cutory trust, by which the trustees were to receive and pay over the rents and profit to her, but under an executed trust and free from all control of the trustees.

Such an interest could be, and it has been, sold under a fi. fa.; and all the interest the defendants have in the land is under a sheriff’s deed, founded on the fi. fa. against Cleary. Cleary being dead, his surviving widow has a right to the possession-of the land. She has asserted her right in this action, and the defendants cannot be permitted to defeat it by denying the title under which they entered. They took it as an exe • cuted trust, and cannot now contend that it was executory and not subject to levy and sale; for, had it been so, they ought to have taken nothing by their purchase. Cestui que use has a right to the immediate possession and enjoyment of the land-; the use is transferred to the possession, according to the statute of uses; where the trustee is to receive and pay over to the cestui que trust the rents and profits, the legal estate is in the trustee. For this general proposition, there can he no necessity to quote authority.

Hunt and Memminger, for the motion.

We think the action well brought, and dismiss the motion.

Gantt and Earle, JJ., concurred. 
      
       Overruled by Rice ads. Burnett, Sp. Eq. In Errors. An.
      
     