
    Bowling’s Adm’r. vs. Bowling, et al.
    
    Error to the Mason Circuit.
    Chancery. Case 9.
    The case stated.
    
      Slaves, life estate. Remainder. Equitable Jurisdiction.
    
    
      Sept. 22.
   Chief Justice Ewing

delivered the opinion of tlie Court.

In 1809, Robert Bowling made his last will and testament, and died shortly afterwards, by which he devised all his estate, embracing a number of slaves, to his wife, Mary Bowling, during her life, the remainder to his two children, Samuel and Nancy. Nancy afterwards married Thornton Hord, and the widow finding that the negro woman, Hannah, devised to her, was high tempered and unmanageable, and frequently ran away, delivered her to her son-in-law and daughter, as more capable of managing them ; also delivered to Hord and wife a negro girl, surrendering her life estate in both. Both Hannah and the girl frequently ran away from Hord, and making efforts to escape to Ohio, and Hannah succeeding once or twice in getting to Cincinnati, they were apprehended at great costs and expense, and much trouble to Hord, who after several escapes, sold Sarah to some person unknown, who removed her out of the State, and sold Hannah to one Anderson, whose executor sold her to some one, who removed her to Mississippi, where she died, leaving two children living. Samuel Bowling died much involved in debt, and his remainder in the slaves in the possession of his mother, who is still living, having been sold by his administrator, for the payment thereof, this bill .was filed by him against Mary Bowling, the widow and tenant for life, and Thornton Hord and wife, to recover the value of Samuel Bowling’s interest in remainder in the slaves sold, and their issue. The bill was dismissed, and the administrator has appealed to this Court.

The holder of a life estate in slaves, may rightfully surrender such estate to one oí two tenants in remainder, and is not reponsible for the disposition afterwards made of such slaves.

There is no ground for- rendering the widow liable. She had the unquestionable right to surrender her life estate, and deliver over the two slaves to her son-in-law and daughter, who was tenant in remainner as to a moiety, and who resided in the same county and state, and still continue to do so. There is no evidence that she acted otherwise than in good faith in doing so, nor is there any evidence that she contemplated a sale of the slaves by Hord, in or out of the State, or that she in any degree participated in the sale, or gave her consent to the same. She can on no principle, be rendered responsible for the act of Hord, over whom she could exercise no legal control, after she had surrendered her life estate, which she surely might do, under the circumstances of this case. Nor do we think that Hord can be made responsible at this time, in this form of ptoceeding.

■ Presuming that administration was taken on the estate of Samuel Bowling, within reasonable time after his death, it appears that he lived with his mother, and in the same neighborhood several years after the sale by Hord, of the slaves in question. He must have been well apprized, not only of the surrender and delivery of the slaves to Hord and wife, and of the terms thereof, but also of the sale of the same by Hord. And though one of the slaves and her children remained in the nighborhood for some years after her sale, he took no step to secure them against removal, or to seek redress against Hord, after their removal. Nor do we hear of any objection to the sale, or complaint on his part, during his life. It may, therefore, fairly be implied, that he acquiesced in, and tacitly assented to the sale, as well as the surrender by his mother. The probability is, that it was understood, tacitly or expressly, that Samuel was to receive out of the slaves that remained with his mother, in the partition of the slave property after her death, an equivalent in value, for the slaves alotted to Hord and wife, and looking to remuneration in this manner, that he assented to the surrender and sale by Hord. This presumption being indulged, and it may reasonably be indulged, from the facts and circumstances attending the case, the administrator has no right, in any form of proceeding, to make Hord responsible for the value of Samuel Bowling’s interest in the slaves thus surrendered and sold.

The interest in remainder in slaves belonging to the wife, cannot be subjected to the payment of the debts of the husband until the wife be suitably provided for.—

Nor can he at this time recover, or subject to sale, an equivalent interest or share of Mrs. Hord in the residue of the slaves. She answers and contends for her equal moiety in remainder in each and all the slaves in possession of her mother for life, and alledges and proves, that her husband is improvident and insolvent, and insists on 'her paramount equitable right to a settlement out of those slaves, and that her interest, which is not more than a competent settlement, ought not to be diminished, as the means of satisfying Samuel Bowling for the slaves received and sold by her husband. Her claim is valid, and her defence sustained. As before settled by this Court, had her husband actually assigned to S. Bowling her interest in any portion of the remainder of the slaves, neither S. Bowling nor his representative, could sustain such assignment, against her paramount right to a settlement, Hord vs Hord, &c. (5 B. Monroe, 81,) and the authorities referred to.

—But if the husband survive the wife, then such interest may be subjected.

The Chancellor may inter fere at the instance of one holding the interest in remainder in slaves, and prevent tenant for life or his vendee, from removing slaves so held, out of the state — but after a removal of property so held, the Chancellor cannot interfere, especially where the life estate is hanging.

The Chancellor may ' restrain waste, but after it is done, cannot redress it.

But Hord may survive his wife, in which event the interest of his wife will survive and accrue to him, and in that event, in the partition of the slaves between him and Samuel Bowling, the latter, or his representative, will have the equitable right, in the division, toan equivalent in value, out of the slaves divided, for the slaves sold and disposed of by Hord. But the interest of Hord, depending as. it does, upon a double contingency, the death of the widow, and his survivorship of his wife, cannot now be alotted to the administrator of S. Bowling, nor sold by the decree of the Chancellor, as in effect was determined by this Court, in the case of Hord vs Hord, supra.

Besides, if the sale by Hord was a wrong unauthoiized, and unapproved by Samuel Bowling, we are not prepared to concede that a Court of Equity can afford present relief for the wrong, after it has occurred. There is no doubt that Samuel Bowling, or his represntative, before the removal of the slaves, and while they were within the jurisdiction and power of the Court, might have prosecuted a bill of qv.ia timet, as a precautionary measure against any person holding the estate for life, and upon proper allegations and proof as to an intended removal, might have obtained an order restraining their .removal, until security was given to have them forthcoming to be divided upon the termination of the estate for life. But it does not follow', that after the wrong has happened by the removal, that the Chancellor will interfere, to redress the wrong, before the right to a partition has accrued.

The Chancellor will restrain waste, or a trespass upon real estate, and interpose and exercise his powers to pre vent many wrongs and injuries that are threatened, but after the waste or trespass has been committed, or wrong has accrued, will not interpose to renress the injury.

Nor can jurisdiction be derived in the case before us, from the statute of 1839, (3 Stat. Laws, 554.) That statute applies only to those holding a life estate in slaves, and not to those who have held and parted with the life estate before the enactment of the law', as was the case of the slaves in queslion. Those holding a life estate, are xequired to list them with the County Court, and against such only, is the Chancellor authorized to enforce performance.

Payne and Bealty for plaintiff: Hord and Me Clung Taylor for defendants.

Upon the whole, we are satisfied that the decree of the Circuit Court should be affirmed, and the same is\affirmed, with costs.  