
    S. W. Bentley and B. H. Bradley, adm'rs, v. Elizabeth Long et al.
    
    When testator gave to his wife the whole of his estate, both real and personal, during her life or widowhood, and at her death or marriage, to be equally divided among his children, each child, surviving the testator, took a vested transmissible interest; and the administrator of any child dying afterwards, during the lifetime of the widow, will, on the falling in of the life estate, be entitled to that portion of the estate which his ihtestate would have taken, if he had survived the tenant for life.
    The rule laid down to distinguish between vested and contingent interests, is, that if the devisee is in a capacity to take, at the death of the testator, whenever tire possession becomes vacant, and is only withheld from the possession by the temporary right of enjoyment in another, then the devisee has a vested transmissible interest, and not one that is merely contingent.
    Where the widow of testator is, under the will, tenant for life, and apportions off any part of the estate to his children, under a power vested in her by the will to give off to those who may marry, &c. any part which she might be able to spare — an account to be kept of its value, to be discounted against their full shares at the final distribution, the portions assigned to the children thus advanced, vest in them absolutely, subject only to be accounted for at the final distribution on the falling in of the life estate, and not to be thrown back as a part of the general estate to be then distributed.
    If a creditor under ca. sa. take from his debtor an assignment of his undivided interest in a personal estate, such assignment is valid to the amount of his credit; and if he afterwards purchase the same interest from the sheriff, who sells it under a levy to satisfy senior executions to his own, the sale is void, but the creditor so purchasing will stand in the place of those senior creditors and be subrogated to all their rights.
    It is the constant practice of the court to require security for the production of slaves at the termination of the life estate, or any other contingency where the rights of the remainderman spring up, whenever these rights appear to be in danger.
    
      Before Johnson, Ch. at Union, June, 1846.
    Johnson, Ch. The following is a copy of the second clause of the last will and testament of the late William Long, who died some twenty of thirty years ago, and on which the rights of these parties mainly depend.
    
      “ 2d. I give unto my beloved wife the whole of my estate, both real and personal, during her life or widowhood, and at her death or marriage, to be equally divided amongst our children; and should my said wife have any thing to spare out of my estate, previous to her death or marriage, I wish her to give it to those of my children who may marry or settle off — the amount to be valued and kept as an account, to be deducted from their equal shares; and whenever the amount of my estate is to be divided according to the above conditions, I desire and wish that each of my children shall select a person disinterested, and that the said persons may equally divide my said estate, and that the whole of my said, children may, by lot, receive their equal share.” '
    He was, at the time of his death, seized of a plantation, a number of slaves, and other chattels, and left surviving his widow, the defendant, Elizabeth Long, whom he appointed executrix, and ten children: — Henry, the intestate of complainant, Bradley, and the defendants, James, William, Ben, John, Elizabeth Farnandes, Letitia Ezell, Caroline, wife of Amasa Ezell, Sarah, wife of Smith Willis, and Mary, wife of Daniel Mabray, all of whom are defendants, and the issue of the testator and the defendant Elizabeth Long, his widow.
    The complainant, Bradley, insists that under the provisions of the will, he will, on the death of the widow, be entitled, as the legal representative of his intestate, Henry Long, to his interest in the estate, being the one-tenth part; and this raises the question, whether the children took a contingent interest, dependent on their surviving the widow, or a vested transmissible interest, to take effect in possession, on her death — and one of the objects of the bill is, to have this question settled, and their rights ascertained and declared.
    In Bankhead vs. Carlisle, 1 Hill Ch. page 259, testator gave to his wife, during her widowhood, all his estate, real and personal, and directed that on her death or marriage it should be equally divided among all his children. Gideon, one of his children, survived the testator, but died in the lifetime of the widow, who remained unmarried until her death, and it was held that Gideon took a vested transmissible interest. The rule laid down to distinguish between vested and contingent interests, is, that if the devisee is in a capacity to take, at Ihe death of the testator, whenever the possession becomes vacant, and is only withheld from the possession by the temporary right of enjoyment in another, then the devisee has a vested transmissible interest, and not one that is merely contingent; and it is hardly necessary to observe that this case is governed by that rule. The terms employed in the two wills are substantially, and indeed almost literally, the same. On the falling in of the life estate, the complainant Bradley will be entitled to the interest his intestate would have taken if he had survived the tenant for life, to be disposed of in the due course of administration.
    On the 5th December, 1839, the defendant, Benjamin Long, was arrested on a ca. sa. issued from the Common Pleas, at the suit of the complainant, Bentley; and on the 7th, two days after, he filed in the office of the Clerk of that court a schedule of his property, with the intention of applying for the benefit of the Prisons bounds Act. One of the items in this schedule is, “ my interest in my father’s estate.” (I use the words.) In addition to this, the schedule contains numerous other items, consisting of choses in action, live stock, farming utensils, a bale of cotton, household furniture, &c. On the 9th of the same month, only two days after, the defendant, Benjamin, endorsed on the schedule an assignment to complainant, Bentley, in the following words : — “I, Benjamin Long, the defendant in the within stated case, do hereby assign over to Samuel W. Bentley, the plaintiff in this action, all the within named articles, accounts, &c. reserving to myself what the law in such cases made and provided, allows.” (Signed) “ B. F. Long.” Following, is the written consent of complainant, Bentley, to his discharge, on his delivering to him all the within named articles, accounts, &c. and he was accordingly discharged.
    The amount of the principal sum due by defendant, Benjamin Long, on the ca. sa. was about $70, increased by the amount of interest and costs. The value of the articles specifically enumerated in the schedule, would seem, from a rough estimate, to be more than sufficient to pay the debt, but it does not appear that they were ever delivered to Bentley, or how they were disposed of. He subsequently received $36, leaving about $50 of the whole demand unsatisfied. Subsequently, the complainant, Bentley, procured the Sheriff of the district to advertise for sale the undivided interest of the said Benjamin Long in the estate of his father, in virtue of the assignment so made to him, and on the 2d March, 1840, the Sheriff offered the same for sale at public outcry, and complainant, Bentley, after a fair competition, became the purchaser at $500 ; a sum, I suppose, approximating its value at the time. There were several writs of fi. fa. at the time of the sale, in the hands of the Sheriff, against defendant, Benjamin Long, at the suits of other persons, which the Sheriff stated had been levied on his interest in the estate, and that the sale was made as well under their authority as under the assignment to Bentley; and the proceeds of the sale have been exclusively applied to them, they being older than Bentley’s judgment. But the sheriff did not take the slaves (the only subject of controversy here,) into his possession, nor were they present at the time of the sale. Bentley subsequently received from the defendant, Farnandes, the balance due him on his judgment against Benjamin Long. Complainant, Bentley, claims to be entitled to the undivided interest of Benjamin Long in the estate, when the life estate falls in — -1st, under the assignment of Benjamin Long to himself; and, 2dly, under his purchase at Sheriff’s sale. And the leading object of the bill, in which both complainants were supposed to be interested, was to obtain an injunction, to restrain the defendants, who are in possession of the negroes, from removing them out of the jurisdiction of the court; but supposing that complainant, Bentley, has no legal interest in them, I will first dispose of his claims.
    It has been repeatedly held, that a ji. fa. has no lien on the defendant’s undivided interest in personal estate, nor is it the subject of levy and sale by the sheriff. The possible uncertainty as to the identity of the thing to be sold; the want of knowledge of the value; the difficulty, expense, delay and uncertainty of obtaining possession, are a sufficient foundation for the rule. I refer only to the case of Dargan vs. Richardson, Dud. Rep. 62. The complainant, Bentley, took, therefore, nothing by his purchase at sheriff’s sale.
    The Act of 1788, 5 Statutes at Large, 78, provides that a prisoner in execution in civil process, shall have liberty, at any time during his confinement, to render a schedule, on oath, of his whole estate, or so much thereof as will pay and satisfy the sum really due on the action on which he may be confined, and if no cause be shown to the contrary, be discharged on his assigning to the plaintiff the estate and effects mentioned in the schedule — whereupon the creditor may take possession of the property, and, if necessary, sue in his or her own name, for the recovery thereof; and it is further provided, that the property mentioned in the schedule must be visible property, if the prisoner is possessed of any such; but if he is not, choses in action must be mentioned, with the names and places of abode of the witnesses thereto.
    The interest which defendant, Benjamin Long, had in the estate, was a chose in action, and the effect of his assignment to complainant, Bentley, was to constitute him his agent to reduce it into possession, and to pay himself out of it the amount due to him on the judgment, and no more. It did not invest him with the unqualified right of property, but invested him with a power which he had no authority to assign to another. And if a stranger had purchased at the sale, he could, under no circumstances, have been in a better condition than Bentley himself. The proceeds of the sale were about ten times the sum due to Bentley, and supposing that the full value, the purchaser could be entitled to no more. Besides, that was an abuse of the power, as Bentley was entitled to sell no more than what would pay his debt, and at the rate of the sale, one-tenth, instead of the whole, would have paid it. But without further speculation, Bentley sold and Bentley purchased. The legal title was in him, and he acquired no more by the purchase. It was assigned to him, to be used to pay the debt due him by defendant, Benjamin Long, and that has been paid to him by other means, and clearly he has no further claim to the property. The bill is, therefore, dismissed, so far as complainant, Bentley, is concerned.
    The only remaining question is, whether the complainant, Bradley, is entitled to the security he prays against the removal of the slaves now here, out of the limits of the State, or for their forthcoming at the termination of the life estate.
    In 1839, about the time, or after, that the defendant, William Long, had married, the defendant, Elizabeth Long, m pursuance of the powers vested in her by the will, gave to him a negro boy, called Reuben, which, by persons selected for that purpose, was valued at $550. On the marriage of her daughter Caroline, to Amasa Ezell, she, in like manner, gave her a negro, called Laura, valued in like manner, at $225.
    The life estate of defendant, Elizabeth Long, in all the remainder of the estate, real and personal, consisting of land and negroes, was sold by the sheriff under a fi. fa. against her, and was bid off by Z. Hooker, (except one negro bought by Robert Thomson,) some time in 183-, and was assigned by him to defendant, James Long. They remained, notwithstanding, in her possession, until November, 1845, when the defendants, by mutual consent, called in the aid of three disinterested persons, and partitioned the negroes among themselves, as though the life estate had fallen in. Complainant, Bradley, had notice, of this proceeding, and was requested to attend, but did not. The defendants proposed to let him into the partition, in right of his intestate, but in consequence oí his neglect to participate, they set apart no portion for him, and now put themselves on their rights.
    In this partition, four negroes were assigned to defendants, Farnandes and wife, and are now in his possession, to wit: Silena and her three children, Walter, Minerva and Joe. They claim two others, Adolphus and Minerva, who they state in their answer are out of the State, but it is not stated, nor does it 'appear, when or by whom or for what purpose they were carried out of the State. The remainder of the slaves belonging to the estate of the testator — how many in number are not stated, nor are their names or ages — are represented to have been carried out of the State by James Long and John Ezell, and are supposed to be in their possession, in Tennessee. Neither of these defendants, nor Amasa Ezell and wife, have been made parties by process, and the property or negroes claimed by them being out of the State, the court can make no order affecting their interest that could be carried into effect. It appears, from the answer of defendant, Farnandes and wife, that he is in possession of a negro girl, called Amanda, one of the negroes that belonged to the estate, left with them by defendant, Smith Willis; but I have been unable to ascertain, from the pleadings, whether this negro was given to Mrs. Willis by the executrix, in execution of the powers vested in her by the will, or assigned to her in the general partition, nor is there any evidence on the subject; and I propose to direct an inquiry into that matter.
    The question more immediately affecting defendant, William Long, is, whether the negro given to him by his mother on his marriage, vested an absolute estate in him, or will be subject to distribution on her death, as part of the general estate. The will provides that “ should my said wife have any thing to spare out of my estate, previous to’ her death or marriage, I wish her to give it to those of my children who may marry or settle off — the amount to be valued and kept as an account to be deducted from their equal share.” That the power was fairly and legitimately executed in this instance, is shewn by the fact, that at the general division of the negroes, their aggregate value, including those that had been given to the married children, was estimated at more than $7000. The share of each child being worth about $700, and the negro given to William Long was valued at $550, less by $150 than he was entitled to out of this fund. The direction that an account should be taken of the property so given to the children, and that the amount should be deducted from the share of the child so advanced, on the final distribution of the estate, negatives the idea that the property itself should be brought into the final division. William Long, therefore, took an absolute estate in the negro Reuben, and was only bound to account for his value at the time of the final distribution ; and the same rules apply in all cases where other children have been so advanced.
    On the principles before laid down, the complainant, Bradley, will be entitled, on the death of Elizabeth Long, the tenant for life, to the share to which his intestate would have been entitled if he had survived, in the negroes now in the possession of defendants, Farnandis and John Long; and his right to security against the removal from the State, is the only remaining question affecting these defendants.
    The life estate of Elizabeth Long in the negroes, was legally in James Long, who derived his title from Hooker, who purchased at Sheriff’s sale. The defendants, Farnandes and John Long, derived their possession from him, and that possession is therefore rightful. Now it is not enough that one who will become entitled to property on the happening of a future contingency, that he apprehends danger, or the possibility that another, who has the rightful possession, will remove it out of the jurisdiction of the Court, to entitle him to the extraordinary aid of this Court to prevent it. There must be some reasonable ground to apprehend it. In the case of John Long there is none. He has been long and permanently settled in the neighborhood — has a family around him, and the means of comfortable support, and there is no evidence of any purpose or intent of removing or disposing of the negro in his possession.
    Defendant, Farnandes, has also a family and permanent settlement in the neighborhood, with even more abundant means. The only evidence against him, was the declaration that he intended to remove to Texas next fall, and this was qualified, according to another witness, by the addition that he did not intend to go until he had fought out “ this battle,” —meaning this suit. Defendant, Farnandes, was among the volunteers for the Mexican War, and this declaration was made while the volunteer company to which he belonged, he being among them, were parading the streets of the village, under the eye and during the sitting of the Court — perhaps on the day the cause was heard. This certainly was not the foundation of the bill, and I am disposed to regard it rather as a declaration made under the excitement of the moment, thau as a settled purpose of removing himself or his property put of the State, or with the intent to deprive complainant, Bradley, of his rights. It strikes me as too trivial to justify the Court in imposing on him the rigid terms demanded by the complainant:
    If defendant, Willis and wife, have put in their answers to the amended bill, which was filed after the partition of the negroes, and out of which the principal difficulties arise, I have not been furnished with them, nor do my notes furnish any evidence of any fact indicating his intentiofi of removing. On the contrary, my recollection is, that on an inquiry from the court, it was answered at the bar, either that he had n® permanent residence, or that he was then in North Carolina. Their case seems indeed, to have been, in a great degree, overlooked by the court or the counsel, or both. It is therefore ordered and decreed, that the Commissioner of the Court do ascertain and report, whether, the defendant, Willis, has a permanent residence in this State or elsewhere, or is transient, and whether, having a permanent residence in this' State, there is any reason to believe that he is about to remove or carry the said negro out of the State, and to report any other special circumstance that he may deem material.
    I have not been put in possession of any answer from the defendants, Daniel Mabr'ay and wife. It appears, however, from the answer of Farnandes and wife, and I take it to be true, that in the general partition, a negro, (Phil,) was allotted to them. They, it seems, have a permanent residence in Spartanburg, and there was no evidence before me of his intention to remove, or to remove the negro.
    It is also ordered and decreed, that the bill be wholly dismissed,. as to the defendants, William Long, John Long, Daniel Mabray and wife, Elizabeth Long, and Farnandes and wife. These defendants, it is understood, under former orders made in the cause, were arrested under the process of the court, and compelled to enter into bond with security,, not to remove the negroes in their respective possession, without the jurisdiction of the court. Neither the orders nor the bonds have been put in my possession — their precise forms are not therefore known. It is fit, however, that they should be annulled; and it is further ordered, that all orders heretofore made in the cause, requiring these defendants to give security, in whatever form they may be found to exist, be, and they are hereby, set aside and rescinded, and all bonds or other securities made or entered into in pursuance of such orders, be delivered up and cancelled.
    The parties will be at liberty to move any other or further orders that may be necessary to carry this decree into effect.
    I do not think it a case for costs. Each party must pay their own.
    I have stated in the decree that James Farnandes had volunteered for the Mexican war. I took that for granted, from seeing him, from the Bench, marching in the streets with the company of volunteers; I am satisfied since, that I was mistaken, and that he was not one of the volunteers.
    There is some mistake, too, in the statement as to Bradley’s having notice to attend the division of the property. He was told the family were about to divide the property,, and requested him to appoint a time to attend, and he declined having any thing to do with it I was the less particular, as I supposed that neither of the foregoing facts had any material bearing on the case. I think a schedule rendered by Ben. Long to obtain the benefit of the Prison Bounds Act, on being subsequently arrested on a ca. sa. at the suit of Bentley, was offered in evidence.
    The complainants appealed from the decree of the 'Chancellor in this case:
    1st. Because the complainant, Bentley, acquired a good title to the interest of defendant, Ben. Long, in the estate of his father, by virtue of his assignment of the same under ca. sa. to complainant, Bentley, and by Bentley’s purchase of said interest for a full and valuable consideration, under a fair sale and competition.
    2d. Because, if complainant, Bentley, acquired no title to said interest by said assignment and purchase, he should at least be refunded or reimbursed the amount which he paid for the benefit of Ben. Long, on executions then existing in the sheriff’s office against him, and that the said interest of Ben. Long in the estate of his father, should stand pledged as a security for the refunding of the amount so paid.
    3d. Because the defendants, who are nowin possession of any of the property derived from the estate of the testator, should be enjoined from removing said property beyond the limits of this State, and be required to give security for the forthcoming of the same, upon the termination of the life estate.
    
      Dawkins & Wright, for the motion.
    
      Herndon, for defendants, Farnandes and wife.
    
      Thomson, for defendants, Wm. Long, Smith Willis and wife.
   Caldwell, Ch.

delivered the opinion of the court.

This court concur with the circuit decree in the construction of the w-ill of William Long, deceased, that his children take a vested transmissible interest in his estate, to take effect in possession on the death of his widow; that the assignment of Benjamin Long (one of the children) of his undivided interest in the personal estate of his father, under the Act of 1788, to Samuel W. Bentley, who had had him arrested under a ca. sa. was valid; and that the subsequent sale of the same interest under the senior judgments and executions .against Long, by the sheriff to Bentley, was void.

But this court differs from the circuit decree, as to Bentley’s right to relief; he paid the sheriff five hundred dollars, which has been applied to older judgments and executions against Long. Bentley’s claim is that of a junior creditor, who has paid prior debts, and he must be substituted in the place of the senior creditors, and subrogated to all their rights.

The judgment creditors of Long have already done all that can be done at law, to establish and secure then rights, and this court alone possessed the power to enable them to pursue the equitable interest of the debtor, in the hands of the tenant for life, or of those who have possession of the property, with knowledge of the rights of the remaindermen, so as to subject it to these claims when the life estate falls in. Kennedy, ex’or. Simons et ux. et al. Dud. Eq. R. 141. An account must be taken between Bentley and Long, to ascertain what the former has received on his own execution, and what he has paid to the sheriff on the senior judgments and executions, (which must stand for his benefit,) the balance to be re-imbursed to him out of Long’s undivided interest in his father’s estate.

The tenant for life of personal property, or one that purchases from him, with a knowledge of the estate in remainder, is a trustee for the remainderman; but before security for the forthcoming of the property at the termination of the life estate, will be required, the remainderman must have reasonable grounds to apprehend the loss or removal of the property, or that his rights are in danger; otherwise, only a schedule of the property will be ordered to be given.

James Long, one of the remaindermen, and of the defendants, has purchased his mother’s life estate ; the defendants have partitioned the property, which consisted principally of negroes, among themselves, without apportioning any part to either of the plaintiffs; the defendants now hold in severalty the negroes ; they resist the plaintiffs’ claims, and in the language of one of the answers, stand upon their rights ; several of the defendants have removed out of the State, and have taken a large number of the negroes with them. These acts of the defendants are sufficient to shew that the plaintiffs’ rights are not only in danger, but that a loss has already been sustained by the removal of part of the property beyond the jurisdiction.

The case of Cordes vs. Ardrain, 1 Hill Ch. R. 157, and others, is analagous ; there a creditor of the legatee, who was in possession of the slaves' bequeathed to him, (with a limitation over to his surviving brothers and sisters,) levied an execution on two slaves, and sold his life estate in them. Ardrain purchased them with notice — the remaindermen became fearful .that all the slaves in the same situation, (the legatee being in debt and embarrassed,) might be sold and scattered over the country, or carried beyond the State, and insisted on having their interests secured, and that the slaves should be produced and delivered on the ' event’s accruing which would entitle them to the possession; the court said that it had been the constant course to require security for the production of the slaves at the termination of the life estate, or any other contingency, when .the rights of the remainderman spring up, whenever these rights appear to be in danger,” and granted the relief.

Mrs. Long, the mother, has executed the power under the will, of apportioning off such part of the estate as she could spare, by delivering the slave Reuben to William Long, and the slave Laura to Amassa Ezell and Caroline his wife; these slaves are therefore vested absolutely in them — they must account for the value of their respective slaves, on the final distribution of the estate.

It is ordered and decreed, that the part of the circuit decree that dismisses the bill as to Bentley, and rescinds the previous orders requiring the defendants to give security for the negroes in their possession, (except the two slaves Reuben and Laura,) and orders the bonds or other securities made or entered into, in pursuance of such orders, to be delivered up and cancelled, be reversed — that the parts of the cirquit decree inconsistent with this opinion, be modified by it, and that the other parts be affirmed.

Harper, Ch. Johnston, Ch. and Dunkin, Ci-i. concurred.

Decree modified.  