
    S. & R. W. West vs. Biscoe.
    Appeal from Prince-George’s county court, sitting as a court of equity. The bill of the complainant,. (now appellee,) filéd, against William Beanes, and Stephen and. Richard W. West, (the appellants,) on the 16th of September 1818, stated, that on the 9th of April 1798, Hannah West, deceased, being seized of a large real estate, by deed conveyed to said Beanes, his heirs ,and assigns, all her real estate, in trust for her‘own use during the term of! her natural life, and from and after hér death to be equally divided between her sons, the said. Stephen and Richard TV. West, as tenants in common, in tail. That the trust so created for the benefit of Stephen and, Richard was, upon the express proviso and condition that they should, before they received any benefit thereof, or estate or interest therein, pay, or cause to be paid, or secure to be”paid, the .sum • of £500 current money to each of the granddaughters of the said Hannah, to wit, Maria Oden, and, Hannah Oden, at their arrival at the age of sixteen years, or day of marriage, which ever should first happen; that is, the said Stephen and Richard were to be respectively liable each to pay £3,50 current money to each of the said grand" daughters. That on the Slst of January 1812, the said Hannah Oden arrived at the age of sixteen years, and on the 1st of October 1812, intermarried with the complainant, w ho became entitled to receive of the said Stephen the said sum of £250, and of the said Richai d the said sum of £'£50; the condition of the estates granted in tfust for their use as aforesaid being the payment of the said sums ©f -money; and which estates the said Stephen and Richard agreed to accept upon that condition. That the right and interest of the complainant’s wife was and became a vested, and not a contingent interest, at the execution of the said deed by the said Hannah West, and that no subsequent circumstances could preclude her, or her legal representatives, from claiming or receiving the same when the period of payment arrived. That oír the 8th of October 1813, Hannah, the wife of the complainant died, and thereupon, the right to the said sum of ¿£500 devolved upon the com ] plain ant. That in April 1815, Hannah West also died,, ¿nd Stephen and Richard thereupon took possession of the estates granted to them as aforesaid, in trust for their use, according to the form of the gift and conveyance aforesaid, and now hold and occupy the same; but neither the said Stephen and Richard then, nor when the complainant’s wife arrived at the age of 16 years, nor on the day of her intermarriage aforesaid, nor since those periods, paid, or causé to be paid, to the complainant’s wife, or to the complainant) or secured to be paid, the said sums of current money in the said indenture specified, in pursuance of the condition therein stipulated, which condition enured to the benefit of the complainant’s wife during her life,, and to the complainant as'aforesaid since her death; nor hath the said William Reanea taken any steps, or instituted any, proceedings at law or in equity to compel the said Stephen ¿nd Richard to comply with and perform the condition aforesaid, by the payment of the said sums of money, with interest thereon, or by giving security to pay the same; but the said Stephen and Richard, (although thereto often requested,) and each of them, have, and hath hitherto’wholly refused, &c. Prayer, that Beanes, may be.enforced to ex* ecute the trust, and that Stephen and Richard may be com-, pelled to pay to the complainant the sums of. money re ? spectively due from, them and unpaid, &c. The subpoena which issued against the defendants was served on Stephen West only, and on his nonappear.ance at the return day,. (April 1819,) an attachment of contempt was ordered and issued against him, and the subpoena renewed against the, other defendants, returnable, to the September term 1819» At that term these process were returned not executed,, and the cause was continued until the following term. At, the next term, (December 181.9,) the cause was further con-, tinued until April following. At the last mentioned term, (April 1820,) neither of the defendants appearing, the at-, tachment and subpoena were again renewed, returnable to, the following June term, when the sheriff returned that he. had attached Stephen, and summoned the other defendants» On motion of the complainant, the sheriff, was. ordered to. bring into court, at the next term, .the body; of the said, Stephen, and attachments of contempt were, ordered and, issued against the other defendants. At the next, term, (September 1820,) the sheriff produced the body of Stephen who appeared by his solicitor, and it was. ordered that he. answer the bill. No return was made of the attachments, against the other defendants, and the cause was continued, until the next term. At that term, (December 1820,) the compLainant and Stephen West appeared, and Stephen not having answered the bill, nor the sheriff returned the at-, tachments against the other defendants, the cause was. continued until the next, and in like manner to the two succeeding terms. At September term 1821, Beanes and. Richard W. West, having been attached, appeared, and answered the bill. By the answer of Richard W. West, .he admits the facts as stated i,n tire complainant’s bill, (so far at least as they relate to the dates or documents referred to in the bill,) to be true, but states that he never received any advantage from the property conveyed to his brother and himself, until after the decease of his mother, |n.l815, and that the property has not yet been divided between his brother and himself. That lie was not aware that he was in law or equity liable for the payment of the money demanded by the complainant, more especially as he, always considered the claim unfounded, either in ho-, Suiúb or justice. Beanes, by his answer, states that he was named as the trustee in a certain deed executed by Hannah West, of the purport of the deed exhibited by this Complainant with his bill. That he is not interested in the event of the said suit, and as for the facts stated in the said bill, that it is incumbeut on the complainant to prove them, if disputed by the other defendants, who only are interested, he having no precise recollection of the dates referred toj and he prays he may be hence dismissed, &c. The cause was then continued to the next, and to the succeeding terms, Stephen West still being in contempt for not an&wering the bill. At April term 1822, it was on motion, ordered that Stephen West answer by the fourth 'day of the following term, and on the service of the order on him, and his default to answer by that time, that tlie bill as to him should be taken pro confesso. At the next term, (September 1822$) the defendants filed in court a copy of the will of Hannah West (admitted to have been 82 years of age in 1815, whdn she died,) dated the 24th of November 1813, and executed in the presence of one witness only, whereby among cither things, she gave and bequeathed to her son Richard W. West, “all tlie remaining part of all my estate and property of every nature and kind, which is not herein otherwise disposed of, of which I may die possessed or entitled to.” On motion of the complainant, the court [Stephen, Ch. J. and Key, A. J.] passed the following decree: “The bill, answers and exhibits, in this case being considered by the court, and the bill as against ¡Stephen West, one of the defendants, being taken pro confesso, it is thereupon adjudged, ordered and decreed, this 9th of September 1822, by the said court, that the said Stephen West pay to the complainant the sum of £250 current money, with legal interest thereon from tlie 31st of January 1812, till paid; and that the said Richard W. West pay also unto the complainant the like sum of £250 current money, with the like interest thereon; and that the said William Beanes be hence dismissed with his reasonable costs.” From this decree Stephen and Richard W. West appealed to this court.
    
      Family settlements are to be construed most favourably to. promote and effectuate -the' intentions of the party settling *" .
    ‘ The statute of use» of *27 Hen. VIII, ch. 10. affects á deeá'ef’bargain and sale no fortherthan lo vest the legal estatein the bar« gainee '
    
    , H conveys her real estate by *a deed of bargain and sale, to IV. B9 in trust for her two» sons, R and *S WÍ 'Provided that they ihall9 before they receive any benefit or intei’est under the trust', pay,' or cause to be paid, or secure to be paid, woo, to each of her two granddaughters M O, and H Q”-Heldythat the 2500, were a charge nn flip pcf-atA
    If R and S W, take possession of the estate under such a conveyance, they became personally liable for'the tóoo, and may. in equity,Ve t'miovml, peisonally to pay if. *
    Where.the deed makes the', said /500, payable; to the granddaughters on their arrival at the age of 16 years, or on their marriage, and. they tlo arrive at that age, or many, before she sons R aiul 5 /Ftake possession of the estate conveyed, the right to'the 500/, is a vested right, and becomes -payable to the grand-daughters, or tfreinrepr.esentatives, on R and S W, taking possession, with interest thereon from the ame the grand-daughters did so respectively arrive at iheage of 16years, &q.
    One of the granddaughters having married and died in the life-time of her grand-mothev, her portion survived to her husband,* ; ‘ ' . *
    Under what circumstances a bill may be taken pro confesso against one of the defendantsa
    
      The cause waa argued before Buchanan, Ch, J EarIk. Martin, and Arch-ss, J.
    
      
      Taney, Magruder, and F. S. Key, for the Appellants,'
    stated, that the,complainant in the court below claimed relief under the deed executed by, Hannah West to William Behnes, in two ways — 1st. By compelling Beanes ,to execute the trusts alleged tó be' contained in the deed in favour of the complainant; 2d. By compelling the other defendants to pay the money provided for in the deed. The 'decree of the court below gávé him relief in this latter way. They contended tliát the decree was erroneous, 1. Because the defendants', S and R. W. West, by accepting the property mentioned in the deed, came under no personal liability to pay the money claimed by the complainant»
    2. If they did, the remedy was at law.-
    3; The complainant has no remedy either at law or in equity against any of the defendants.
    ■ 4. Tliat the deed exhibited is not a deed of trust. That Conveying the estate to Beanes for’the usé of the other defendants; the uáe became executed by the statute, and they would také thé estafe, but for the payment of or securing thé ¿6500 being á condition precedent to the vesting of the ¡ástaté; That this condition never háving been performed, the estáíé never paásed out of the grantor by this deed, but remained in her by reason of the nonperformance of the condition upon which it was limited to take effect till Jiér death, and then passed tó the devisee urider her wilt.
    5. That tlie Wests were hot bound to pay until the estáte came into their possession; and that the complainant’s wife dying before then, her interest lapsed.
    . 6. Tlié bili taken pro cónfesso agaitist Stephen West is irregular.
    On these several points they cited 2 Blk. Com. 336, (and ‘Christian’s note.) Preston on Estates, 184, 190. Doe vs. Leicester, 2 Taunt. 109. Phipps vs. Mulgrave, 3 Ves. 613, Chandos vs. Talbot, 2 P. Wms. 612. Roundell vs. Currer, 2 Bro. Chan. Ca. 67; and Cooper’s Plead. 14.
    
      Jones and R. Johnson; for the Appellee,
    cited Boraston’s case, 3 Coke, 19. Fearne Con. Rem. 318. Thomas’s Lessee vs. Wootton, 4 Harr. & M‘Hen. 428. 2 Blk. Com. 165, 335, 336, 337. Attorney General vs. Christ’s Hospital, 3 Bro. Chan. Ca. 165. Hooley vs. Booth, 2 Vern. 359. Bacon vs. Clerk, 1 P. Wms. 478. Prec. in Chan. 500, S. C. Bland vs. Middleton, 2 Chan. Ca. 1. Attor
      
      ney General vs. Floyer, 2 Vern. 749. 2 Com. Dig. tit. Chancery, (4 W. 18,) 707. Miles vs. Leigh, 1 Atk. 575. Adair vs. Shaw, 1 Sch. & Lef. 243. The act of 1785, ch. 73, s. 19.
   Earle, J.

delivered the opinion of the court. The deed of trust from Hannah West to William Beanes, contains a settlement of her landed estate on her family, and is tQ be expounded most favourably to promote and effectuate her intentions. It is a deed of bargain and sale, and the uses raised thereby are not operated upon by the statute of uses, further than to vest the legal estate in fee in William Beanes, subject to the trusts therein mentioned, which arc ail executory. The chief object of the settlement is to preserve the estate to her sons, and their children, and to transmit it to the. latter unincumbered with debts. Next to this in importance is the provision for securing the payment by her sons to her granddaughters, of portions of £300 éach, payable when they shall arrive át 16 years of age, of tearry. Both these objects are intended to be answered through the instrumentality of the trust estate^ by conveying the lands to the trustee, and his heirs, to hold the same in moieties for the use of her sons, Slephén West and Richard IV. West5 provided that they shall, before they receive any benefit or interest under the trust, pay, or cause to be paid, or secure to be paid, five hundred pounds current money to each of the granddaughters, Maria Oden. and Hannah Oden, at their arrival at the age of sixteen years, or day of marriage, which shall first happen. At the time of the settlement Hannah W est was an old woman, but having lived to a very advanced age, she unexpectedly to herself outlived her granddaughter Hannah Oden, who arrived at the age of 16 in the spring of 1812, married the complainant, George W. Biscoe, in the fall of that year, and died the succeeding fall. Hannah W1st departed this life in 1815, and her sons, Stephen West and Richard W. West, immediately after took possession of her landed estate, and have continually enjoyed it since, without having paid, or secured to be paid to their nieCe, Hannah Oden, or her representatives, the portion of ¿2500, or any part of it. In 1818 George W. Biscoe, the surviving husband, filed his bill in Prince-George’s county court, on the equity side thereof, against William Beanes, the trustee, and the sons Stephen. West and Richard W. West; id enforce the execution of the trust, and to compel the .said Stephen West and Richard W. West to pay to the complainánt the portion thus given to his deceased wife. The facts of the bill are not denied by the answers of the trustee, and Richard Wt West, and they' are taken pro confesso against Stephen West for the want of an answer. The chancery jurisdiction beloW decreed á dismissal of the bill as to the trustee; and a payrhent of the portion, with interest by Stephen WTest and Richard W. West, considering them under a personal obligation in equity to'pay it. This decree this court have to revise and decide upon, ahd particularly they have to decide; whether it can be sustained as an adjudication in personam.

The court have reflected maturely ort this case; and have examined all the authorities within their reach, that havfe any bearing upon it. That the portion claimed is a charge in equity upon the estate conveyed in trust, we have no question; although the grantor has not in express terms made it so, The clause directing it to be paid, or secured to be' paid, before her Sons entered upon the beneficial Use of the estate, was evidently introduced in favour of her granddaughter; to accelerate the payment to her, and strongly implies a charge «port tlie estate; and particularly in the event of the sons refusing to accept it, on the ground of its .insufficiency to páy the portion; That the clause is to be viewed in this light, is amply proved by the authorities, and more especially by the casé of Wallis vs. Crimes, to be found in 1 Cases in Chan. 89; which, as to this point, may be considered a parallel case, and will therefore be circumstantially adverted to. The father of Sir George Crimes conveyed his estate to trustees in fee; upon the trusty that if Sir 'George, within six months after his father’s' death, secured to the trustees £500 for the benefit of Sir George’s younger children, then (after such security first given to the trustees) to convey the premises to Sir George and his heirs; and until the time limited 'for giving the security, the trustees to stand seized to the use of Sir George’s eldest son, (Sir Thomas Crimes,) for his mainlenance; and in default of such security; the trustees, at the request of Sir George’s eldest son, to convey to him. Without giving the security, or in any way respecting the trust. Sir George entered upon the estate, and considering it .as, bis absolute property, demised it for a long term of years,’ by way of mortgage, to secure the payment of a sum of money, and died. The executors of the mortgagee exhibited their bill against Sir Thomas Crimes, and the trustees, to enforce a redemption, or to hold discharged of equity, and the court of chancery decreed, upon a view of all the facts, including the conveyance in trust, that the executors hold and enjoy the premises as a security of the mortgage money and interest, against the defendants, and all claiming under them, charged with the £500 to dir George Crimes's younger children, from the time the plaintiff came into possession, unless the defendant, Sir Thomas Crimes, should pay the mortgage money and interest, by a given day. Upon a bill of review, Lord Keeper Bridgemun refused to reverse the decree, and declared he looked upon the condition precedent to be in the nature of a penalty, and that he would regard the intent of the trust, which was to secure the £500 to the younger children.

If the portion claimed by the surviving husband is thus a charge upon the land, is he constrained to follow it in the bands of the trustee; and is he, without remedy in equity against Stephen West and Richard W. West, on their personal obligation to pay itih

We have to confess, that we should-regret to find- ourselves under the necessity of answering either branch of this proposition in the affirmative, lor we verily think, the appellants are bound in conscience to fulfil the wishes of their aged parent, and to pay this portion, according to her intentions, unequivocally expressed in the settlement. "We do not, however, feel ourselves under any such necessity, entertaining decidedly as we do the opinion, that the proceeding in personam? and the decree thereon, may in the particular circumstances of this case be sustained on •the strictest principles of equity. The legal estate in the. lands of Hannah West, is by the deed vested in the trustee, who holds them for the use of Stephen West and Richard W. West, which use (distinguished in the trust deed by the epithets “benefit, estate, interest,") they were not to enjoy under the trust, until they had paid, or secured to be paid, the portion in controversy. They nevertheless, wholly unmindful of the terms of the settlement, entered as before mentioned into the possession and enjoyment of the granted premises, and had the use of them, and the actual pernancy of the profits, for several years hefore.the bill exhibited, and from thence arises, as think, their personal responsibility to pay the portion sued for by the appellee.

If Stephen West and Richard W. West had refused to accept the, grant upon the terms, of the settlement, i.t would haye become the duty of the trustee to interpose, to secure the granddaughters portion, as it was perhaps his duty, to see the portion paid, or secured to be paid by them, before he permitted the enjoyment of the use. They did not, however, refuse, the grant, but on the contrary accepted it, by taking possession of the estate, and enjoying-the rise;, and they thereby admitted its adequacy to pay the portion of the granddaughter. This brings the case within the reason, of. the case of The Attorney General vs. Christ’s Hospital, reported in 3 Brown’s Reports, 165, although that case should be said not t.o agree in all its facts with this'. The condition there, was to be performed, sitbse-. quent to the. acceptance of the devise, whereas it. is objected here, that the condition is precedent, and that the. interest did, not vest until the condition was performed.

However this'objection might, have availed, if Stephen West and Richard W- West bad refused to accept the grant upon the terms of the settlement, it can have no influence on the present decision, when it is considered, that they have bad for years the possession of the estate, and the full enjoyment of the -use, in the same manner, and precisely as if they had performed the condition by paying, or securing tobe paid, the granddaughter’s portion* Instead of paying and possessing, they have chosen to possess without paying; and surely it cannot but be in accordance with the best, principles of equity jurisprudence, to compel them to pay. The possession of the devised property bound Christ, Hospital to a performance, of. the condition annexed to the devise; and in like manner, the possession and enjoyment of Stephen West and Richard W. West, of the use' designed for them, should bind them to. a performance of .the condition, which ought to have been per--, formed, precedent to their possession. The distinction between those two kinds of conditions, as to relief, is more., over trifling, if not nominal, where the ca.se lies in compensation, as this unquestionably does. See Francis’s Maxims, 49. 1 Fonbl. 211, 218, and the cases there cited» After the nay oi payment, the acceptance of compensation may be enforced, ‘to vest the estate in the party 'not performing, and on principles of reciprocity he should be coerced to make compensation, where by his own act he becomes possessed, of, and lias the fruition of the estate.

The opinion that the appellants are under a personal obligation to pay the portion of Hannah Oden, to. her husband aud representative, receives strength, we think, from, other considerations, They have fully admitted the sufficiency of tire granted premises to pay the portion, but the admission does not make it so, nor does it in any mannee appear that it is so. If it is inadequate, the rents and profits must supply the deficiency, and as they have been the receivers for years, they have made themselves personally liable to pay it. These receipts are too within purview of the bill, which charges that Stephen West and Richard W,! West accepted the grant, and possessed themselves of the granted premises, and have, had the enjoyment of them, and prays that they may be compelled to pay. Again, if they had performed the condition, by securing the portion to be paid to Hannah Oden, on her arrival at the age of 1G, or day of marriage, which should first happen, they would have incurred a personal responsibility within the contemplation of the settlement; and it seeips consonant to justice, that they should be exposed to a like liability, by voluntarily placing themselves in the same situation, and taking to themselves the same enjoyments, as if they had performed the condition. The decree below we think right, aud therefore we affirm it,

DECREE AFFIRMED,  