
    
      Martha Hall et al. v. W. B. Thomas and J. Thomas. Same v. W. B. Thomas. Same v. J. Thomas.
    
    A deed of gift, “in consideration of natural love and affection,” to tlie children of the donor, by name, then living, which contained a provision that any after-born children should share equally with the children then alive, and which recited that the donor had put the said children, “in full and peaceable possession,” of the slaves, which were the subject of the gift, was held, by its terms, to vest the whole legal estate in the children tiren alive, to the exclusion Of those born afterwards.
    A deed is inter vivos, and is to taire effect m presentí. Such a thing as a direct and immediate gift of personalty to persons not in esse, cannot be.
    
      Before O’Neall, J. at Orangeburg, Fall Term, 1847.
    In these cases the plaintiffs claimed, by actions of trover, to recover the value of several slaves in the possession of the defendants.
    The defendants are the executors of Edward Thomas, and are jointly possessed of some of the slaves, in that way. They are also sons of the said Edward, and have each of them by gift from him, one of the slaves, in their respective possession. The plaintiffs claim under a deed from Barbara Thomas and Edward Thomas to Magdalen Ulmer, dated 29th December, 1810. They are the children of the said Magdalen. Mag-dalen Ulmer, by deed of the 18th of December, 1811, conveyed the slaves to her children, Martha and Avan, then in esse, and to her after-born children, if any she had. Martha is the only one of the plaintiffs born at the execution of the deed — the others were born long subsequent.
    The words of this deed are, “in consideration of the natural love and affection which I have and bear unto my beloved children, namely, Martha and Avan — and also if I should have any more children, they shall all of my children be equal and share equal in this my property, given and intended. to be granted and given and confirmed, and by these -presents do give, grant and confirm unto my said children, four negroes,” &c. “I the said Magdalen, have put the said my children in full and peaceable possession.”
    The deed from Barbara and Edward Thomas was for three slaves, Scinda, and her children Charlotte and Will. In the last deed Charlotte is alone mentioned.
    Barbara Thomas was the mother of Edward. Magdalen Ulmer, it appeared, before the execution of the deed by Barbara and Edward Thomas, had loaned to the latter some money, perhaps $1000, to secure the payment of which the slaves were conveyed.
    
      About the year 1810 or 1811, it appeared that Barbara Thomas and Magdalen Ulmer removed to Georgia. Upon removing the' negroes, Scinda, Charlotte and Will, were treated and' considered as the property of Barbara. The witness (Allen Shuler) said Magdalen Ulmer had Liz and her child. Barbara remained a short time in Georgia. Soon after her return, Edward Thomas went to Georgia, and in two trips brought home the slaves Will, Scinda and Charlotte. It was most satisfactorily proved that Magdalen Ulmer was assenting to the return of the slaves; this was between 30 and 40 years ago.
    Magdalen, in a conversation between 1814 and 1818, speaking to one of her relations of her claim to the slaves, said to him “Uncle Henry, it is all settled to satisfaction. I have no claim against Edward Thomas.” In 1813 Magdalen Ul-mer executed a deed, by which she conveyed to Barbara Thomas for life, and after her death to Edward Thomas, the slaves Scinda, Charlotte and Will — the slaves now claimed are Charlotte and her issue, Elmira, Harvey, Watt, Nanny, Gale, Green and Ball. They have been, from the return of the mother from Georgia, and the birth of her children, in Edward Thomas’s possession. Barbara Thomas died many years ago. Edward Thomas died in ’46. A suit had been instituted against him by these plaintiffs in ’44, which abated by his death. A previous suit had been brought in ’41, in which the plaintiffs were non-suited.
    Martha Hall, the grantee mentioned in her mother’s deed, is between 40 and 50 years old, and is therefore clearly cut off by the Statute of Limitations. Avan is dead. Her representatives were not parties. The jury were told that at law, the deed from Barbara and Edward Thomas, being absolute on its face, could not be shown by parol to have been intended as a mortgage. Still, after a lapse of 30 years, and possession concurring, the jury might, if the proof led to the conclusion that the parties understood the transaction as a mortgage, presume the execution of a defeazance: and then that the whole matter had been settled. But the circuit Judge told them, in the view he took of the case, it was unnecessary to consider this matter. For he told them, under the deed from Magdalen Ulmer, of the 18th of December, 1811, Martha and Avan alone had the legal estate in the slaves, and Martha, who is alone before the Court, being barred by the Statute of Limitations, the defendants were entitled to verdicts, which the jury accordingly found.
    The plaintiffs appealed, and moved for a new trial in the above cases, on the following grounds:
    1st. Because his Honor charged that under the deed from Magdalen Ulmer, executed in 1811, after-born children took no legal interest, and that the children named in the deed being barred by the statute of limitations, the plaintiffs, who were the after-born children, could not recover. Whereas, it is respectfully submitted, that the plaintiffs toot a legal interest under the said deed, and not being barred by the statute were entitled to recover.
    2d. Because his Honor charged the jury that the evidence offered by the defendants was sufficient to obviate the force and effect of the deeds under which the plaintiffs claimed. Whereas it is respectfully submitted that the plaintiffs showed a clear legal title to the property, which no evidence offered or ground of defence taken by the defendants, was sufficient to defeat.
    3d. Because the verdict was contrary to law.
    4th. Because the verdict was contrary to evidence.
    
      Bellinger, for the motion.
    Glover, contra.
    
      Deed from Magdalen Ulmer to Children.
    
    State op South Carolina, )
    
    Orangeburg district. $
    Know all men by these presents, that I, Magdalen Ulmer, of the State aforesaid, in consideration of the natural love and affection which I have and bear unto my beloved children, namely Martha and Avan, and also if I should have any more children they shall all my children be equal, and share equal in this my property, given and intended to be granted and given and confirmed, and by these presents do give, grant and confirm unto iny said children, four negro slaves, to wit: Liz, Charlotte, and Charlotte and Lewis, together with all their increase, and also all my moveable estate, both real and personal. To have and to hold the said negroes with their increase, and also the other premises before mentioned, unto my said children, their executors, administrators and assigns, from henceforth, to their own proper use and uses thereof, and therewith to do, order and dispose at their will and pleasure, as of their own proper goods and chattels freely and peaceably and quietly, without any manner of lett, trouble, or denial of me, the said Magdalen Ulmer, or any other person or persons whatsoever; of all which premises, I, the said Magdalen Ulmer, have put the said, my children, in full and peaceable possession, by virtue hereof. In witness thereof I, the said Magdalen Ulmer, have hereunto set my hand and seal, this eighteenth day of December, 1811, and in the thirty-fifth year of American Independence.
    Magdalen Ulmer, [l. s.j .
    Signed, sealed and delivered in presence of us Adam Shuler,
    Jacob A. Snell.
    
      Proved 18th December, 1811. Recorded in book No. 10, 57,2nd February, 1812.
   O’Neall, J.

delivered the opinion of the Court.

In this case, the first ground of appeal alone has been argued, and will alone be considered. For upon it, the whole case turns, and by its decision will be filially disposed of.

I have again considered the construction which I gave to the deed on the circuit, and I have seen no reason to change my opinion.

A deed is inter vivos, and is to take effect in presentí. Such a thing as a deed to a person unknown, or not in esse, cannot be. For there is no one, in such a case, who can receive the actual or constructive delivery. It is true, there may be a remainder after a life estate. For there, the remainder rests upon and is supported by the life estate. In personalty, according to our decisions, there may also be a remainder by deed, after a life estate. But such a thing as a direct and immediate gift of personalty to persons not in esse, has not as yet been allowed, and I trust never will be.

In this case the deed sets out that “in consideration of the natural love and affection which I have and bear unto my. beloved children, namely Martha and Avan, and if I should have any more children, they shall, all my children, be equal, and share equal, in this my property, given and intended to be granted and given and confirmed, and by these presents do give, grant and confirm unto my said children four negro slaves, to wit: Liz, Charlotte, Charlotte and Lewis, together with all their increase, and also all my moveable estate both real and personal. To have and to hold the said negroes with their increase, and also the other premises before mentioned, unto my said children, their executors, administrators and assigns, from henceforth to their own proper use, and uses thereof, and therewith to do, order and dispose at their will and pleasure, as of their own proper goods and chattels, freely and peaceably and quietly without any manner of let, trouble, or denial of me the said Magdalen Ulmer, or any other person or persons whatsoever; of all which premises I, the said Magdalen Ulmer, have put the said my children, in full and peaceable possession by virtue hereof.” When this is read, it seems to me too clear to admit of doubt, that it vested the property in the children then born, and mentioned in it, Martha and Avan, and that the post nati, who came into being many years after, had no legal estate whatever.*' Every part shews this. To whom had the donor natural love and affection 1 Certainly the children whom she had already borne. Those who were yet to be born, were altogether too much uncertain to be the subjects of love or affection. This was especially the case with an unmarried woman like Margaret Ulmer, who, although she had borne two ille-gitimates, Martha and Avan, yet in legal contemplation was to be regarded as incapable of again repeating the offence, ^ which indeed she never did, having after many years married, and become the mother of several legitimate children. The deed, it is true, mentions, in this part, the post nati, but the interest which she intends to give is more in the nature of a command to Martha and Avan than an attempt to convey to the post nati; it simply declares, they, the affer-bom children, shall be “equal and share equal, in this my property given, and intended to be granted and given and confirmed.” This might in Equity make a trust, in Martha and Avan, to share with the after-born children ; but it would still leave the legal estate in Martha and Avan. For they alone could take it, .at the execution of the deed, and the estate must vest then or not at all. The deed, however, clearly shews, in its other terms, that the estate was by it vested and intended to be vested in the said Martha and Avan. It says, “do give, grant and confirm” unto my said children. What children 1 Remember the words are in the present tense — they contemplate persons then in esse, to accept the gift, grant, and confirmation. “The said children” must apply to the children named. The habendumisto “'the said children, their executors, administrators and assigns from henceforth.” The gift in the contemplation of the deed is to take effect now, and to have effect continually thereafter, in the said children and their representatives. How could that be, unless Martha and Avan take, and take alone 1 The present right of disposition is given to the said children, and the deed winds up by declaring that the donor has put “the said children in full and peaceable possession.” One not in esse could not be put in possession. Martha and Avan alone received the possession, and. in them is the right of property. This case is a much stronger one against the post nati than Kitchen v Craigs where a somewhat similar deed received a construction like that which I have placed on this under consideration.

Sanders on Uses and Trusts, 137-8.

The effect of this deed may be tested in another way. If Martha and Avan had been of full age, and before the post nati were born, (for several years intervened before that event) they had sold and conveyed the slaves, could there have been a doubt, that the sale would have been good ? I presume not. That being so, it follows that the legal estate is in the said Martha and Avan.

If this had been a conveyance of land, the most that could have been made of it, between the parties, would have been that, at law, the legal estate was in the grantees Martha and Avan ; and in Equity, that they might have been regarded as trustees of a springing or shifting use, 1st for themselves, 2d for themselves and the after-born children, as they respectively come into being. In Equity, I suppose, the same

Moore v. Bair3&Q4 Bail"

result, in personalty, would be attained, under the same circumstances. But in Equity, against third persons without notice, such a trust never could be set up. In that Court as

well as this, the statute of limitations would be a perfect protection.

Here the only inquiry is, where is the legal estate ? When that is ascertained, as here, to be in Martha and Avan, no matter who may be the cestui que trusts, if four years have elapsed from the accrual of the right of action, and there be no disability, the statute is a bar. ' motion 'is dismissed.

Richardson, J. Evans, J. and Frost, J. concurred.

Motion refused.  