
    WM. YOUMANS AND LEVI YOUMANS, TRUSTEES, VS. WM. B. BUCKNER.
    Where the grantor conveyed his estate, real and persona!, to his wife for life, and at her death, to his children, and in the conclusion of the deed says, “ and for the faithful execution of this deed, I do hereby appoint my sons, Levi and William, trustees for my wife and remaining children; and for the full and sure conveyance of said slaves, to be for them and their use, I do hereby deliver said slaves and other property into the possession of my wife and sons Levi and William;” Held, that this may be regarded a conveyance to trustees, for the use of the wife and children; that the legal estate is in the trustees, and the wife’s interest being merely equitable, is not the subject of levy and sale under an execution against her husband.
    
      Before Mr. Justice Butler, at Coosawhatchie, Fall Term, 1836.
    His Honor the presiding judge made the following report of the case:
    “ Trespass for taking and selling two negroes, George and Frank. It was admitted that the defendant, as sheriff, had levied on and sold the negroes, to satisfy an execution of Ephraim Smith v. William Youmans, sr. The plaintiffs contended that the legal title of the negroes was exclusively in them, by virtue of a deed of trust executed by Wm. Youmans, sr. to them (the plaintiffs Levi and William Youmans, jr.,) on the 24th Feb-r-uary, 1834. The following is a copy of the deed.
    
      “ The State of South Carolina, Beaufort District. To all persons unto whom these presents shall come, greeting : — Whereas, I, William You-mans, of Saint Peter’s parish, in the State and district aforesaid, am lawfully seized and possessed of, in my right,, of the following slave negroes, to wit: Tener, Limerick, Yianna, Frank, Liddy, Narow, Bob, Jacob, Caroline, Nancy, Jane ; also my lands and stocks, cattle, hogs and horses, and household furniture. Now know ye, and all men, by these presents, that I, the said Wm. Youmans, for divers good causes and valuable considerations, me. hereunto moving, have thought proper, and as my own right, and for the good will and affection which 1 do bear for my beloved wife, Mary Youmans, and the children I have lawfully begotten by her, as Levi, John, William, Robert, Thomas, Elizabeth, Sarah, Ann, Mary, James, Lavicy, now living, I do hereby give all the abovemeñtioned property to my beloved wife during her natural life, and after her decease to be the property of my children, viz : Levi, John, William, Robert, Thomas, Elizabeth, Sarah, Ann, Mary, James, Lavicy, to be equally divided between my said child:en, to share and shaie alike. I do, by these presents, give, grant, and confirm, unto my loved wife, Mary You-mans, the slave negroes, viz : Tener, Limerick, Wanna, Frank, Liddy, Nancy, Narow, Bob, Jacob, Caroline, Jane, and their increase ; and also my lands, and stocks, cattle, hogs, and horses, and household furniture, to be equally divided, to share and share alike, and to them and their heirs and assigns forever, after the decease of my beloved wife, Mary Youmans. And for the faithful execution of this deed, and the property therein given, as therein described, I do hereby appoint my loving sons, Levi and William Youmans, of the district aforesaid, trustees for my wife and remaining children ; and for the full and sure conveyance of said slave negroes, as abovenamed, to be for them and their use, I do hereby deliver the said slave negroes, and all property herein mentioned, into the possession of my wife, Mary Youmans, and my trusty sons, Levi and William You-mans.
    In testimony whereof, I have hereunto set my hand and seal this 24th day of February, in the year of our Lord one thousand eight hundred and thirty-four, and in the 58th year of American Independence.
    ■ N. B. The abovenamed Jane is excepted to Levicy, and confirmed by a former gift. (Signed,) William Youmans. [L. S.j
    Signed, sealed, and delivered, in the presence of us, Stephen Youmans, Levi Youmans, Wm. Stewart.”
    Two objections were taken to the plaintiffs’ title by the defendant’s counsel : first, that it was not made bona fide, but with a design to defraud Ephraim Smith, and to deprive him of the benefit of a judgment which 
      he would probably recover against the said William Youmans, sr., in ap .action of slander, which the said Smith commenced against the said Wm, Youmans, sr., a short time after the deed was executed; and secondly, that according to the legal effect and operation of the deed, the donor had such an interest under it, as might be the subject of levy and sale.
    
      “I thought, myself, from the evidence introduced, that the first objec-, tion was well founded, but it is unnecessary to say any thing further in relation to that, as the jyry have found a verdict, sustaining the second objection alone. They ivere well warranted in finding such a verdict, from 'what I said to them in my charge. I charged them, that assuming the deed to be fair, and unimpeachable for fraud, it secured such an interest to the donor as might be the subject of levy and sale, and they found accordingly ; at least, I so understand it. The verdict is in the following Words : “ We find for the defendant, on the ground that the life interest jn the negroes was liable to sale. (Signed,) Archibald Chaplin, Foreman.”
    , “The only question, therefore, for the Court of Appeals, is, did I put a legal construction on the deed 1 The donor, the husband, gives by deed a life estate to his wife, and expressly secures the possession to her. The last clause of the deed is as follows : I do hereby deliver the said slave negroes, and all the property herein mentioned, into the possession of my wife, Mary Youmans, and my trusty sons, Levi and William Youmans.” It was, no doubt, the purpose of the donor to convey his property'in such a way that it could not be reached by execution; but at the same time he wished to secure a life estate to his wife, and thereby, a usufructuary interest in the property to himself during his own life. The property was in his possession'at the time of the levy, and had been'in his possession from the date of the deed, although he had made a formal delivery to trustees and his wife, at the time the deed was made. It was contended that the wife’s possession was for herself, by permission of the. trustees, and that the husband had nothing but an equitable interest, which could not be sold; that is, he had a right merely to use the rents and profits of his wife’s interest, which was vested in trustees for her use and benefit. Now, I think the donor had something more ; he had not only a right to the use, but to the possession. The possession of the wife was his possession. And that interest, little or much, I thought was subject to levy and sale ; and I think I am sustained in this view of the case by the case of Fogartie v. Hubbell.
    
    The plaintiffs appeal, and move to set aside the verdict, and for a new trial, on the following grounds :
    
      1. That his Honor erred in charging the jury, that according to the legal effect and operation of the deed, the donor had an interest under it, which might be the subject of levy and sale under execution against Jiim.
    2. That the fiuding of the jury was contrary to law.
   Curia, per

O’Neall, J.

This case turns upon the legal effect of the deed under which the plaintiffs claim! if that be a conveyance to the plain-, tiffs, and the use be not executed, then this verdict cannot stand.

It is contended, first, that the conveyance is a direct conveyance to the wife of the grantor for her life: if this be true, there can be no doubt that at law it is void ; for in such a case it is nothing more than a grant from the husband to himself. But in equity a deed from the husband tp his wife would be supported as an agreement to hold to the separate use of the wife, and the husband would thus be made her trustee. To test, the objection made to the operation of the deed, it is necessary to look at it in all its parts, and to give it such a construction, that it may not conflict with the law, if that be possible. There is no form of words necessary to give effect to a deed conveying personal property in 'trust for the use of another.- Like most other instruments, the intention, when plain, is to have effect. The deed conveys, in the first place, the property to the wife for life, and after her death to the grantor’s children. If it had stopped here, it is plain that the husband’s title would have remained undivested ; but in another part of the deed, he says, “ and for the faithful execution of this deed, and the property therein given, as therein described, I do hereby appoint my loving sons, Levi and William Youmans. of the district aforesaid, trustees for my wife and rematm^^m^^^and for {he full and sure conveyance of said slave negroe^S^ct^mtmk^ Ik be for them and their use, I do hereby deliver the said slmeg^roes, andij^fme/priyperty herein mentioned, into the possession of mykme, Mqryff^míoMsffyrul my sons, Levi and William Youmans.” This pM|rp!j0hi uikechnjiíl], jiáper must be construed with what has gone before. Ipne sor^^^pTandf Willi am, arq appointed trustees for the wife and reimini^^childrenf^Their appointment was for the purpose of giving legal deed — for in the words of the deed, they were appointed for its “ faithful execution.” It would have had no legal effect if trustees could not take a present interest in the property. In this connection the deed may be regarded as conveying the property to them in trust for the use of the wife and children. The subsequent words, “ for the full and sure conveyance of said slave negroes, abovenamed, to be for them and their use, T do hereby deliver the said negroes, and all property herein mentioned, into the possession of my wife, Mary Youmans, and my sons, Levi and William Youmans,” places the matter beyond doubt. For a trust in personal property is a mere bailment, it is a delivery to one for the use of another. Jones v. Cole, 2 Bailey, 330. This being so, the delivery to the wife and trustees, was a good conveyance of the legal estate of the grantor to them, to hold to the respective uses contained in the deed. 'The trustees took the legal estate by their possession, and the wife the equitable by her’s. The previous parts of the deed are to be regarded as the mere declaration of the uses to which the estate was to be held.

Bailey, for the motion. DeTreville, contra.

But it is said, if this be so the use was executed for-the life of the wife, by the delivery to her, arid that therefore the husband’s martial rights attached, and the property was revested in him. This, however, is a mistaken view. A conveyance of land to trustees, for the use of the wife, is not executed by the statute of uses. For it is necessary, to give effect to the trust, that it should not be executed. It is the preservation of the rights of the wife against those of the husband. This is more especially the case, when the husband conveys to trustees for the use of his wife. To permit the use to be executed would defeat the deed. In personal estate generally, the right of the property is in the trustee : he may divest himself of it by an unconditional delivery to his cestuique trust. But where the cestuique trust is a married woman, her possession does not divest the legal estate of the trustee. She is regarded as holding under him and by his permission.

According to these views, the plaintiffs, having the legal estate, could recover against a stranger, who disturbed the possession of their cestuique prust.

The motion fot a new trial is therefore granted.

Gantt, Richardson, Evans, and Butler, JJ. concurred.  