
    
      Mary P. Clark v. Susannah Wilkie, executrix.
    
    Where it was proved that a franchise had been granted by the State to the executors of W. deceased, in trust for the separate use of his daughter; that the defendant was, at the time of the grant, the only qualified executrix, and was still so; and that from that time until the commencemen t of the suit, the cestui que irust and her husband were in the possession and enjoyment of the franchise, consistent with and according to the terms of the grant, this was held, to be sufficient evidence of the acceptance of the grant by the defendant, to support a verdict affirming her acceptance.
    The acceptance of a grant by Act of the Legislature, must be presumed until the contrary be proved.
    
      Before Withe its, J. at Charleston, May Term, 1849.
    The action was brought to recover damages for the loss of a horse, and injury to the wagon and its freight, alleged to belong to the plaintiff, by reason of the bad condition of what was called Rantowle’s bridge. The 1st count alleged that the Act of the Legislature of December, 1824, vested in William Wilkie, Rantowle’s bridge — that the bridge and causeway thereto attached vested in him, his heirs and assigns, for 15 years — that another Act of the Legislature, passed in December, 1841, re-chartered the same, and vested it iu the'executors of William Wilkie for 16 years, in trust to the sole and separate use of Mrs. Messervey, and avers that defendant, was the only acting executrix of W. Wilkie — that the defendant did not keep the bridge in good and sufficient order, &c. whereby the injury complained of was sustained in December, 1843. 2. That defendant was owner and proprietor of the said bridge, with right to collect toll, and neglected to repair, &c. whereby the injury accrued. 3. That the defendant was owner and proprietor, and accustomed to collect toll, <fcc.
    By the Act of 1824, entitled, “An Act to vest in William Wilkie the bridge over the north branch of Stono River, commonly called Rantowle’s bridge,’’ — (after reciting that William Wilkie had purchased the leases of the bridges over the north and south branches of Stono River, called Ran-towle’s and Wallace’s bridges, and designed to erect a new bridge over the north branch, tor which purpose he had made contracts and provided materials at considerable expense; and that the charter theretofore granted to Win. Ancrurn was about to expire,-) it was enacted, that Rantowle’s bridge and causeway in St. Andrew’s Parish, be vested in Wm. Wilkie, his heirs and assigns, for 15 years, from expiration of the then existing lease, “upon the express condition that Win. Wilkie shall rebuild the said bridge and keep the same, and the causeway thereunto attached, in such good repair as to at a|| t¡mes passable.” It was further enacted, that certain persons named, be appointed to examine and approve the bridge so to be built, and to take a bond from Wilkie, with security, in $3,000 penalty to the State, to secure the performance of the condition. Aud lastly, when the bridge and causeway were completed, Wilkie was to be allowed the same tolls as had been allowed by law at Rantowle’s bridge.
    In 1841, by the Act to establish roads, bridges and ferries, it was enacted, “that Rantowle’s bridge, overStono river, in St. Paul’s Parish, Colleton District, be and the same is hereby re-chartered, and vested in the executors of William Wilkie, deceased, in trust for the sole and separate use of Elizabeth S. Messervey, and the heirs of her body, wife of Lawrence J. Messervey, not to be subject or liable in any manner to the debts, contracts, or engagements of her said husband, for the term of 14 years, with the same rates of toll as heretofore allowed by law.”
    On the 19th December, 1835, the "will of Wm. Wilkie was admitted to probate ; and on that day the defendant qualified as executrix; Mrs. Messervey, (by the name of Elizabeth Wilkie,) who was testator’s daughter, was appointed also executrix upon attaining the age of 21 years. By a codicil, dated in 1835, Mr. H. A. DeSaussure was appointed her testamentary guardian during minority. By the will and codicil, a legacy of $1,000 was to be paid to a son of testator; subject to that, one-third of his estate, real and personal, was given absolutely to his widow, the defendant in this case ; and the residue was given to Mrs. Messervey, for life, to sole and separate use, remainder to any child or children her surviving, and in default thereof to her appointee.
    The plaintiff offered testimony in commission, from
    
      John M. Easterby
    
    
      : He was asked if he knew the parties; if he recollected the circumstances attending the breaking of the bridge, “ and the death of one of the horses of plaintiff;” was directed to describe the particulars of the transaction, “and the amount of the injury sustained by the plaintiff.”— He answered that he knew the plaintiff, but not M^s. Wilkie; that he heard the bridge break, and in three minutes after he was there, “the horses and wagon fell in.” He described the scene; said he saw “the wagon and four horses in the water.” Throughout his testimony he said nothing of the ownership of the horse that was lost, nor of the wagon; spoke of them as “ the horse that was killed,” and “the wagon that was broke;” he said that “the wagon was injured, and sent by Messervey to a wheel-wright to be repaired ;” he spoke of the horse lost as well known in the neighborhood, being a grey stallion. In August, previous to accident, Messervey had given notice in papers that bridge was in good order, and had been repaired.
    
      
      Nathaniel Heyward's deposition disclosed that he knew neither of the parties to the action, and liad heard that a “ wagon of Clark’s” fell in when Rantowie’s bridge gave way. He described the appearance of the bridge when he saw it afterwards ; “ he knew a grey stallion, one of a pair, which he had often seen in the possession of Mr. John Clark on the stage road between Savannah and Charleston having' a view to purchase the pair, he once went to the Blue House to enquire the price; saw only one, understanding the other was dead,- and enquired the price of the remaining one of one Rhodes, the agent of Clark,;” said to Rhodes he would give $200 for him, but made no positive offer, because there was no one present with whom he could treat. This was the only horse of such description “ which Clark had in his possession tor some time previous to the accident at Ran-towie’s often saw Clark’s wagon on the roád, and this horse in the wagon; he worked regularly in the wagon, hauling corn along the road on the stage line to Charleston.
    
      TV. C. Hasell:
    
    Was well acqainted with a-.largegrey.stal-lion, named Tobe, which was one of a pair of stallions which were driven in the wagon of plaintiff for several months before the breaking of the bridge — had seen this horse in the plaintiff’s wagon about a week or ten days before the breaking of the bridge, and never saw him afterwards — living at Jacksouborough, on the main road, and knew the wagon and this horse well. This wagon was regmarly engaged in transporting produce to Charleston, and goods fiom Charleston to plaintiff’s store at Ashepoo.
    This is all that was proved by the'plaintiff touching her right of property in the horse that was lost. Much was said by the witnesses going to show the unsafe and insufficient condition of the bride, which is omitted, because the case wetit off on a motion fora non-suit on other grounds. There was no evidence offered at all as to the defendant ever hav- • ing accepted the franchise and trust for Mrs. Messervey, directly or by implication, for no instance was stated in which, she had ever done any act in relation to the bridge, or accepted any toll, or exercised any authority or control upon the subject.
    Defendant, thereupon, moved for a non-suit.
    1st. Because the right of property in the hoi'se was not proved to have been in the plaintiff, but in John Clark. 2d. The defendant was executrix of Win. Wilkie, and sued as such, and as trustee, whereas the franchise did not pertain to his estate; since it had been created by Act of 1841, six years after his death, and the accident had happened eight years after his death — so that his executrix, as such, could not be made liable, nor his estate m her hands; and she could not be made liable as trustee unless she had accepted the charter by word or deed — and there was no such proof.
    Reluctant to grant the non-suit, on any ground, the Circuit Judge permitted the plaintiff to call other witnesses; and on her behalf was introduced
    
      John Clark,
    
    her father, who was allowed to testify after examination on his voir dire. He said the horse lost, he bought for the plaintiff, as her agent, and had so acted in conducting this suit; that she bought the wagon and horses, the latter of which he owned when connected with the stage line. He sold the horses to her when he forfeited-1 that line. He could not. say that Mrs. Wilkie, the defendant, ever received any toll, or did any act, or assumed any authority in relation to the bridge and causeway. Wilkie, in his lifetime, had received toll; and since his death Mrs. Messervey had commonly received toll, she and her husband living at Wil-kie’s tavern between the bridges, and were living there previous to 1841. He never knew Mrs. Wilkie at all until since this action, and never saw her at Rantowle’s bridge.
    
      M. Clement:
    
    Had known the bridge for twenty years and more. Wilkie, in his life time, had received toll; he had heard the house (above spoken of) called trust property ; and was hired to Seymour (after the death of Wilkie) who had received toll from him ; that he had never known any interference by Mrs. Wilkie with the bridge at all.
    The motion for non-suit was still pressed on both grounds. His Honor says, “ 1 did not rely on that which urged a want of proof of the right of property in the plaintiff, for, however that question might have passed before the jury, I thought there was evidence enough tó carry the case to them on that point.
    But I granted the non-suit, upon the ground that there was no evidence at all to ñx the defendant with liability in this Regarding her as sued in character of trustee, and all lhat was alleged concerning her character of executrix, as °Peral‘no only to hx the person designated by the Act of Assembly of 1841, yet I supposed the well founded doctrine to be, that “ an acceptance, or such a degree of interference whh the trust property as can be construed imo an accept-anee, is necessary to constitute a trustee.” It is not the case of one nominaied to a trust in character of executor, and af-terwards qualifying as executor. That may well teslify an acceptance of the trust, and devolve the corresponding liabil-hies 5 such was (he case in a bequest of personalty to executors, as trustees, in Mucklow v. Fuller.
    
    It would seem that the liability of this defendant cannot be maintained upon the proposition announced by Lord Hardwicke in Conynham v. Conynham, to wit“ a trustee, with notice of his appoinimeht as such, interfering with the subject matter, cannot repudiate the trust and say'he acted merely as factor or agent.”
    
      It is scarcely a test to say that she shall be held liable to the obligations of trustee, if it be conceded that she might have become one to enfotce rights, as, to vind.cate the right' to toll, to red:ess a trespass. &c. for she may have had a right to act upon the trust at any time ; and yet, until she had done some act disclosiug that purpose, her liability as trustee, until such act, being the foundation of such liability, could not attach before the act be performed.
    Nor did it appear to me that a presumption could operate agamt this defendant, as it well might in a case where a bo">n, in nature of a franchise, should be granted to orie beneficially; and such a favor, too, as usually, according to our common observation, arises upon the petition’of the party in interest. No evidence was produced that the Act of 1841 proceeded upon the suggestion of this defendant; and so far as the case addressed itself to' my understanding, I rather regarded the vesting of this franchise in Mrs. Wilkie as a naked burthen upon her, and implying no benefit. So far as we were informed of the interference of any body with the bridge or the tolls, as proprietor, such act was traced to Mes-servey and wife; to the latter of whom, it may be, this property, as part of Win. Wilkie’s estate, had been assigned, and if so, oi course subject to the limitations of his will. No matter, however, who was owner of the fee of the adjacent estate, no obligation, ratione tenure, could thence arise in relation to the bridge, for it is settled that such a franchise as a ferry, and by parity a bridge, has nothing to do with the ownership of the adjacent soil. But it seemed to me, that if any one was liable for the damages sustained on this occasion by reason of taking toll, Messervey and wife were so liable, since they, and they only,'took toll, at any time, and bore no relation, in so doing, of agency to the defendant, according to anj' evideuce in the case.
    I could see no difference between a trust’declared as in this case and the like enacted by a deed or testament, and it would seem of dangerous consequence that, in either case, the liabilities of trustee should be visited upon one who had neither explicitly or impliedly accepted the trust.
    I laid no stress upen the argument, that the Act of 1841 granted the franchise to both Mrs. Messervey and the defendant, and so both should have been sued ; for admitting that the Legislature, using the plural number, meant to include two, and those two the persons named, as executors nominated by the will of Wilkie, and supposing, also, that the cause of action being in tort, was quasi ex contractu, and required, for that reason, both the persons indicated to be joined, still that would be matter of plea in abatement for non-joinder of a proper party defendant, and I heard of no such plea.’
    As to the argument ab inconvenienti, that the plaintiff and the public were without redress, unless liability be fixed on this defendant, since she was vested with the franchise, and ’excluded all others, and so forth, it. is. perhaps, not a consideration to elucidate legal rights; at any rate, there may be good cause aud a clear cotuse to vacate the grant.
    For such reasons, I sustained the motion for non-suit.
    The plaintiff moved, in the Appeal Court, to set aside the nonsuit, on the grounds:
    L Because, when it was proved that a franchise had been granted by the State to the executors of William Wilkie, deceased. in tiust for the separate use of Mrs. Messervey ; that the defendant was, at the time of the grant, the only qualified executrix, and was still so ; and that from that time until the commencement of the suit, the cestui que trust and her husband were in the possession and enjoyment of the franchise, consistent with and according to the terms of the grant, there was sufficient evidence of the acceptance of the trust to send the case to the jury.
    2. Because the order for non-suit was in other respects contrary to the law and the evidence.
    
      Northrop, for the motion.
    
      B. F. Hunt, contra.
   Curia, per Frost, J.

In 1841 the defendant was the sole acting executrix of William Wilkie. By an Act of the Legislature. passed in that year, Rantowle’s Bridge was rechartered, and vested in the executors of William Wilkie, in trust, for the sole and separate use of Elizabeth S. Messervey (his daughter) and the'heirs of her body, not to be subject, in any manner, to the debts, contracts, or engagements of her husband. It may be inferred from the terms on which the giant of this franchise was obtained by William Wilkie, in 1824, that it was lucrative. Elizabeth Messervey has been, ever since the grant, in possession of the franchise, receiving the profits that accrue from it. It does not appear that the defendant has exercised any control, nor had any beneficial use of, the subject of the grant. Do these circumstances afford any evidence of the acceptance of the grant, by the defendant, sufficient to support a verdict affirming her acceptance 1 The grant was made to the defendant, and the legal title of the franchise is vested iu her, subject to the uses declared for Elizabeth Messervey. No inference can be made against the defendant’s acceptance from the fact that she has not interfered, but relinquished the possession and profits of the franchise to' Elizabeth Messervey. This is agreeable to the terms of the grant.

An incorporeal hereditament can be created and transferred only by deed. A public franchise can be created only by an Act of the Legislature. In legal phrase, they “lie in grant.”

A distinction is to be observed between those subjects of a grant which have an existence before, and independent of, the deed. In ihe former case, the use or possession by the grantee does not necessarily import an acceptance or claim under the deed, for the possession or use may be tortious or acquired independently of the deed. But where the subject of a grant is eteated by the deed, to exist and be used and enjoyed, it is necessary that the deed should have been perfected by delivery, that is, accepted by the grantee. The actual use and possession of the subject of the grant by the grantee, since it could be acquired ouly by deed, would be conclusive that the grantee had accepted tlte deed. The acceptance of a grant by an Act of the Legislature, cannot be proved by such visible act as the delivery of a deed — yet the acceptance of the grant or thing granted by deed, by him to whom it is made, is a fact to be presumed, until the contrary be shewn — much more must the acceptance of a grant by Act of the Legislature, be presumed. But the evidence of the defendant’s acceptance is not merely presumptive. The thing granted, the fianchise to take toll from passengers over Ruiitowle’s Bridge, has been actually exercised and enjoyed according to the terms of the grant. This is the only mode in which the acceptance of a legislative grant is ever manifested. If the defendant had received the tolls, she could not be permitted to deny the acceptance of the grant. But she has only the legal title, for the beneficial use of Mrs. Messervey. It may be, as stated in the argument, that the grant was made without her knowledge or consent, and has never been assented to by her. But this must, be proved. It cannot be presumed. If it he true, Elizabeth Messervey has illegally beeu demanding and receiving toll from passengers over Rautowle’s Budge; and it is time that this lawless exaction should be exposed, and the Legislature notified that the grunt to the defendant has not been accepted, /is it could not be presumed, in order to charge the defendant, that Elizabeth Messervey has been guilty of an unlawful act, neither can it be presumed in her defence. The evidence ofi'ered is sufficient to charge the defendant as having accepted the grant, and should have been submitted to the jury.

The motion is granted.

Richardson & O’Neall, JJ. concurred.

Motion granted.  