
    James Robertson, and others, vs. Edward Collier and Wife, and others.
    Principles applicable to a bequest for life of chattels consumable, or wearing out, in the use. [*373]
    Where an estate, consisting of a plantation and slaves, stock, farming utensils &e , are devised to one for life (or widowhood) the perishable articles cannot be considered as belonging absolutely to'the tenant for life. — The tenant for life will be considered as a trustee for the remainder-man, and must preserve the estate, with all its appurtenances, in the same situation in which it was received. [*374]
    Bill for account and partition, heard before Chancellor De Saussure, at Abbeville, June, 1833.
    George Robertson, deceased, by his last will and testament, executed in 1811, devised and bequeathed to his wife, viz. : “I also give her, during her widowhood, the whole of the interest and profit arising from my estate real and personal, except so much thereof as may be necessary for *the education and -maintenance of my children, hereinafter mentioned. But in case of her marrying again, in place of the before-mentioned use and disposal of the whole of the interest and profit arising from my estate, I give her one-third part of the whole of my estate; real and personal, to be hers and to be at her disposal forever and the residue he directed to be divided between- his children, after applying so much as might be necessary for their education and maintenance until the period fixed for distribution. By another clause he declared, that “should my hereinafter-named executrix and executor, think it necessary, or for the advantage of the estate, to sell or dispose of all or any part of my estate, real and personal, I do hereby authorize them to do so, the money arising from such a sale, to be laid out in such bank stock as they may think most advisable; the interest arising therefrom to be applied as before directed;” and appointed his wife executrix, and John M’Calla, executor.
    At first M’Calla alone qualified. He sold all the- property except the plantation and the negroes, and other personalty on it; and having paid' the debts, vested the balance of the sales in bank stock. After the testator’s death, the widow continued to reside with the family on the plantation, having the possession and use of the negroes and other property during her widowhood, and supporting and educating the children. The executor had made an inventory and appraisement of this property, and on delivering it to the widow, had taken her receipt, by which she acknowledged the property was to be accounted for, as the will directed. Of the property thus held by her, there was personalty appraised at $4,318 28, which consisted of perishable articles, such as were consumable in the use, and such as could not be expected to outlast an ordinary lifetime. In 1821, the widow intermarried with the defendant, Ed. Collier, and consequently her right to the enjoyment of the whole estate for life ceased, and she became entitled to one-third thereof absolutely, according to the provisions of the will. Shortly afterwards she qualified as executrix.
    
      *The case came before the Court, on exceptions to the Commissioner’s Report. Several questions were made, but the principal and only one which it is thought necessary to notice was, as to the liability of Collier and wife, for the property received by her, which was perishable in its nature, and consumable in the use. The Commissioner, in his report, did not charge them with this property; and the plaintiffs excepted thereto,Because the Commissioner has not charged Ed. Collier and wife with the property received by her, which was consumable in the use, and that which was perishable in its nature, amounting in the aggregate, to $4,318 28, a part of which having been consumed in the ordinary course of husbandry, and the residue having perished or been worn out by Mrs. Collier and her husband; whereas, by the will, “ the interest .or profit,” only of said property is given to Mrs. Collier, during her widowhood, and one-third thereof absolutely, on her marriage. ”
    The Chancellor sustained the exception, and the defendant ■ appealed, on the ground :
    That the devise to the widow during her widowhood, is coupled with a trust to maintain and educate the children, is, both in its terms and substance, a devise as well to the children as to their mother, and by the whole context it is apparent, that the use intended was a use of the property in kind and not in value; and therefore the defendants were hot bound to account for any but what remained of it at the termination of the particular estate.
    
      Bowie, for the defendant,
    cited Howe v. Earl of Dartmouth, T Yes. 13Y. He argued that it was a question of intention, whether the testator intended his widow to enjoy his property in kind or -in value. That having left it to her discretion, whether it should be sold and what part, shows bis intention that she should, if she chose, enjoy it as such property is usually enjoyed. And being charged with the maintenance of the children, the testator must have known, and intended that it should be enjoyed in kind; and *that only such part as remained, on the • á-l death or marriage of the widow, and in the condition it then was, should be given over in remainder.
    
      Pope, contra,
    contended, on the authority of Devlin v. Patterson, that the tenant for life is accountable for the -value of perishable property. The intention here is manifest, for the testator gives only “ the interest and profit” of the property in express terms, which is opposed to the idea of its destruction. The very direction to sell, shows a different intention; for, would the testator have directed a sale of property which he intended should be consumed in the use, or worn out by enjoyment ? The executors ought to have sold this property, and this would have ousted this absolute right now claimed, and not having done so, if the estate should suffer in consequence, Mrs. Collier, as executrix, would be liable for a breach of trust. The testator gives his widow one-third of his estate, if the construction contended for should prevail, she will have received about one-half.
   Harper, J.

The whole estate was devised to Mrs. Robertson during widowhood, subject to a charge for the maintenance and education of her children. The annexing of this charge can make no difference in other respects as to her duties and liabilities as tenant for life. The case of Devlin v. Patterson, decided by this Court and referred to by the Chancellor, was chiefly relied on as settling the principles which are to be applied in the ease before us. The general conclusions in that casé are, that if chattels, strictly consumable in the use, such as corn, wine, &c., be given specifically to one for life with remainder over, the remainder is void, as being inconsistent with the only use which the tenant could make of them. If there be a similar bequest of articles wearing out in the use, such as farming utensils, &c., the remainder-man must take them, or such of them as remain, in the condition they are in at the termination of the life estate, deteriorated by the use of the tenant for life. But if such chattels be given by a residuary bequest, comprehending various articles, they are to be sold and the money vested ; the tenant for life to receive the interest, and after his’death, the remainder-man* to have the principal. The_consequence is, that the tenant for life accounts to the remainder-man for all articles of the commenee-description mentioned, at the value which they have at the ment of the estate for life.

In the case before us, the devise was not strictly of a residue but of an estate, There was no bequest of corb, ploughs, carts, horses or mules, but of an estate comprehending all these particulars, as well as lands and .slaves; and it seems to me to come within the reason of the rule which has been applied to the bequest of a residue. In this ease, however, the legatee was not boiipd, nor could she have been compelled, to sell the estate and vest the proceeds. From the power given to the executrix and executor to sell any part or all of the estate as they may think necessary or advisable, is plainly implied, that if they think proper they may retain and use it in kind, without sale, and hence it is inferred, that if they think proper to retain it, they are to account for perishable articles as if these had been specifically bequeathed. The inference does not seem to be legitimate. The option given by the testator was for the benefit of his estate; and it would seem unreasonable that by adopting one course the devisee should have an unlimited power of disposition over a large portion of the estate — to consume or wear out — while by the. other, she would be compelled to account for every article as she received it.

An extract from the opinion of Judge Nott, in the case of Devlin v. Patterson, will, I think, put the matter upon its true footing. “ There is another view of the subject which deserves consideration, and which is somewhat peculiar to the situation of this country Lands are sometimes given to one for life, together with the slaves, stock of horses, cattle plantation tools and provisions, with a limitation over. In such case, the perishable articles cannot be considered as belonging absolutely to the tenant for life ; neither can they be sold; because they are necessary for the preservation of the estate. The tenant for life must therefore be considered as a trustee for the remainder-man, and must preserve the estate, with all its appurtenances, in the same situation in which he received. He may therefore be required to give an inventory of *the property, or security for its preservation according to circumstances. The tenant for life will be entitled to the increase of the stock and the rents and profits of the land; but he must keep up the stock of cattle, horses, provisions and instruments of husbandry, in the condition in which he received them. For although some of the articles may be consumable in the use and others are wearing out by the attrition of time, yet when taken altogether, being reproductive, the estate must be made to keep up its own repairs.” These views are so full and explicit, that little need be added to them. The principle is the same, though extended in its application, by which a tenant for life in England is forbidden to waste the estate, and is required to make ordinary repairs, or any other tenant is required to treat the estate in a husband-like manner, or the legatee for life of a flock or herd while he takes the increase, is required to keep up the original stock. The tenant for life is entitled to the use of the estate; but it is such use as a prudent proprietor would make of his estate. The profit of an estate is the nett income after defraying all necessary expenses; and to renew a plough that is worn out, or replace a horse or mule that dies, comes under the head of necessary expenses. Thus the relative rights of the tenant for life and remainder-man, will be the same, whethei the estate be sold and the proceeds vested or retained in kind. If, at the termination, of the life estate, all the articles of the sort mentioned are not in as good condition as when he received it, the tenant must make good the deficiency.

The decree of the Chancellor is therefore affirmed.

Johnson and O’Neall, Js., concurred. 
      
      
         Columbia, 1829—not reported—opinion lost or mislaid.—R.
     