
    
      Elizabeth Corbett vs. M. H. Laurens and others.
    
    A tenant for life, who puts improvements on the land, is not, as a general rule, entitled to compensation from the remainder-men.
    Testator devised lands to trustees, for the use of J. H. for life, with contingent remain der to her surviving issue: then declaring his ccintent and purpose" that E. H. should hold the land devised to her “on similar and cori’espondent uses and trusts,” in order <c to effectuate his intent and puipose" he devised lands to the same trustees, “in trust for the use of E. H. for life; and on her decease, then intrust forthe use of the lawful issue of E. H., to he equally divided among them, share and share alike; and if it so happen on the death of E. H., she leave no issue then alive, to take the said estate, then in trust for the use of J. H. and S. It., their heirs and assigns for ever — Held, that E. H. took an estate for life, with contingent remainder to her surviving isSue.
    Held, further, that all the descendants of E. H., grand-children as well as children, were embraced by the term issue, and took pen' capita.
    
    "Where one tenant in common is in possession of the premises,, the right of his co-tenant to an account of the rents and profits, is barred by tho statute of limitations, except for the last four years beforo the filing of the bill.
    
      Before Dunkin, On. at Charleston, June, 1851.
    This case will he understood from the Circuit decree, and the decrees of the Court of Appeals. The Circuit decree is as follows :
    Dunkin, Ch. It is proposed first to consider the claims of the complainant in relation to the plantation called Farmfield, situate on the eastern branch of Cooper river, in St. John’s Berkley, and the tract of five hundred acres of land in St. Thomas’ parish. In the codicil to the will of John Harleston; the great-grandfather of the complainant, executed 5th Sept., 1793, it is, among other things, provided as follows : “ And as for the plantation called Farmfield, and the five hundred acre tract situated in St. Thomas’ parish, I do hereby devise the same to my friends William, Edward and Nicholas Harleston, and their heirs and assigns, on the trusts and for the uses hereinafter set forth: that is to say, in trust to and for the use of my said daughter, Elizabeth Harleston, during her life: and on her decease, then in trust for the use of the lawful issue of my said daughter, Elizabeth, to be equally divided among them, share and share alike : and if it should so happen that, on the death of my said daughter, she leave no issue then alive to take the said estate, then in trust for the use of my daughters, Jane Harleston and Sarah Read, their heirs and assigns for ever.”
    In May, 1795, Elizabeth Harleston intermarried with Thomas Corbett, and departed this life on 17th September, 1837. Her husband, Thomas Corbett, survived her, and died in July, 1850. There were nine children of the marriage. Of these, Thomas, the eldest, died 29th July, 1802, an infant of tender years ; John Harleston, one of the defendants, was born 6th February, 1799 ; Richard, the father of the complainant, was born 17th September, 1801, and died 15th November, 1825; Elizabeth Harleston died 22d June, 1804, eleven months old ; Margaret Harleston, one of the defendants, was bom 7th June, 1805; Thomas C. Corbett was born 14th July, 1807, and died, unmarried and intestate, 2fith June, 1846 ; Elizabeth Sarah died 12th September, 1810, aged eighteen months; Joseph was born 25th March, 1811, and died four days afterwards; Jane died 24th September, 1817, aged about eighteen months. Richard Corbett Laurens, one of the defendants, is the son of Margaret Harleston, and he and the complainant are grand-children of Elizabeth Corbett.
    In the case of Rutledge vs. Rutledge, Dud. Eq. 201, the Court have fixed the construction to be given to this clause of the testator’s will, in reference to the rights of the issue of the marriage. It is true, the question did not arise on the will of John Harleston ; but it is impossible to distinguish the language used from that on which the judicial interpretation was there declared. And this seems to have been the conviction of the counsel, as no attempt was made at the hearing to distinguish the case, or to question the inference to be deduced from that decision. Two points were adjudicated : First, that the children took vested interests, as they •«'■ere successively born, subject to open and let in subsequent issue, in proportion to their numbers ; and, second, that the grand-children are entitled to take, under the description of issue, equally with the children, the immediate issue of the marriage.
    According to these principles, at the death of Elizabeth Cor-bett, in September, 1837, Farmfield and the tract-of land in St. Thomas’ were distributable, in the first place, into eleven equal shares, of which the complainant was entitled, in her own right, to one share, and each of the defendants, John H. Corbett, Margaret H. Laurens, and Richard C. Laurens, to one share in their own rights, respectively, as issue of Elizabeth Corbett, deceased. Thomas C. Corbett (son of Thomas) was also entitled to one share : and of the remaining six shares, the heirs at law of the six pre-deceased children of Elizabeth Corbett, deceased, were entitled to one share for each child so deceased Under the Act of 1797, Thomas Corbett, the father, was entitled to a proportion of the share of such of his children as had died without issue and intestate: and he subsequently became entitled, equally with the complainant, and the defendants, Margaret H. Laurens and John H. Corbett, to the interest of his deceased son, Thomas C. Corbett. The several subdivisions can be more accurately ascertained by the proper officer of the Court.
    In September, 1837, the complainant became entitled to one eleventh of the estate in her own right, and to two-thirds of whatever interest had vested in her father, Richard Corbett, at the time of his death, in November, 1825, and she, subsequently, to wit, on the 26th June, 1846, became entitled to one-fourth of the interest of her deceased uncle, Thomas C. Corbett. The bill prays an account of the rents and profits, from the time of the accrual of the right of possession. This account is resisted by John H. Corbett and Margaret H. Laurens, the defendants, and who are also the personal representatives, as well as sole legatees and devisees of their deceased father, Thomas Corbett. They rely, in the first place, on the statute of limitations. It appears from the evidence, that the complainant, at the time of her father’s death, was only eight months old, having been bom 10th March, 1825. She was about twelve years old when her grandmother died, in September, 1837, and she did not become of age until 10th March, 1846. Her grandfather died in July, 1850, and this bill was preferred on the 27th November, 1850.
    The statutes of limitations do not, in terms, apply to proceedings in Chancery ; but this Court recognizes the provisions of the statutes, as it is sometimes said, in analogy to the statutes, and, at others, in obedience to the statutes. See Smith vs. Smith, McM. Eq. 126. There are many cases, however, and classes of cases, in which Chancery refuses to recognize the plea, or permit it to be interposed, although, at law, it would afford an effectual bar to the action. But it is believed that the books afford no precedent for applying the bar of the statute to a proceeding in Equity, when the statute would be no bar at Law for the same cause of action. The Act of 1788 (5 Stat* 77) allows to persons under twenty-one years of age five years after attaining majority to prosecute their right or title to lands. And the Act of 1791, (Id. 170,) abolishing the action of ejectment, provides that the method of trying the title to lands or tenements in this State, shall be by action of trespass, in which the jury, by the same verdict, may find for the plaintiff not only the land, but award damages for the mesne profits, and judgment shall be entered upon such verdict, as well for the damages as for the recovery of the land. If this were merely an action of trespass to try title, the complainant would not be barred at Law until 10th March, 1851, and these proceedings were instituted some months before that time. In her action at Law, she would be entitled to recover not only the land, but damages for the mesne profits, as they might be awarded by the jury. The statute would be no bar. But both the defendants and the testator were tenants in common with the complainant, and it would be difficult, if not impracticable, for the complainant to have adequate relief, except in this Courl. In administering this relief, Equity is well satisfied to follow the Law, and to regard the rights of the complainant as unaffected by the statute of limitations.
    
      Such would be the judgment of the Court, if, from the time of Elizabeth Corbett’s death, in 1837, her husband, Thomas Corbett, deceased, should be regarded as a mere trespasser. But this view would be equally unjust to him and to the complainant. He was a tenant in common with her, and in right of his pre-deceased children, was entitled to community of possession with the other parties interested. An account of the mesne profits is merely an incident to the recovery of the freehold. And it seems to be very well settled, that the statute of limitations is inapplicable between tenants in common. The possession of one is the possession of all. There are exceptions to this general rule. But it may be affirmed that a tenant in common can never avail himself of the statute of limitations, to bar the claim of his co-tenant, until his exclusive possession has been so long, and under such circumstances, as would warrant the presumption of an ouster, or, at least, until he has committed some distinct and overt act, which would constitute him a trespasser. See Willison vs. Watkins, 3 Peters, 51, and the authorities there cited. The general principle was fully recognized in Snowden vs. Logan, Rice, Eq. 174, where the plea of the statute was held to be no bar to the claim of a co-distributee, and not only partition was ordered, but an account of the intermediate profits, while the property was in possession of the defendant.
    The remaining objection of the defendants relates rather to the measure of accountability, or the principle on which the account should be taken, than to the obligation to render an account. It is said, that from the decease of his wife in 1837, until his own death in 1850, the testator acted under the impression that, according to the true construction of John Harles-ton’s will, he was entitled to the enjoyment of the premises during his life, and that “no contrary opinion was ever intimated to him by complainant’s mother, or by any other person, and that, inasmuch as he continued in peaceable possession of the plantation, and managed the same as his own, and received to his own use the crops thereof, without any claim made, or notice on the part of the complainant, or her mother, it would be inequitable to hold him, or his representatiyes, to any account for the rents of the said plantation.” It is most probable that the testator lived and died under the impression that his rights were similar to those of Dr. Read, who had married the eldest daughter of Col. John Harleston. The original will had' given an absolute estate to his three daughters. On the marriage of Mrs. Rutledge, he thought proper to modify his will, and to provide for their respective issue. In the event that Dr. Read or Mr. Edward Rutledge survived their respective wives, such survivor had also a life estate. But at the date of the codicil, and also at the death of the testator, his daughter, Elizabeth, was- yet unmarried. By his will, she had an absolute estate in the plantation devised. The codicil declares that the plantation shall be held, not 'absolutely, but subject to uses and trusts similar to those directed in relation to his daughter Jane, to effectuate which intent and purpose the estates are devised to trustees, and the -uses declared. Farmfield, &c., was to be held “for the,,use .of .his daughter Elizabeth Harleston, during her life, and, on her decease, then in trust for the use of the lawful issue of his said daughter, to be equally divided, &c.; but if it should so happen, that, on the death of his daughter, she leave no issue then alive, to take the said estate, then in trust for his daughters, Sarah and Jane,” absolutely. The general purpose of the testator, as declared in the codicil, was to cut down the fee given to his daughters to a life estate, with remainder to their issue respectively. This is fully accomplished. Knowing and approving of the alliance of his two ' daughters, he thought proper to make a contingent provision for their respective husbands. Why he did not make the same provision in the event of the marriage of his daughter Elizabeth, the Court is not at liberty to inquire, or to speculate. The province of the Court is very properly confined to the construction of that which is written. The testator has made no such provision. Nor does it appear to the Court that there is any such inconsistency or ambiguity as would warrant a judicial doubt as to the intention of the testator. It can only be said, that if the testator’s daughter, Elizabeth, had been then married, he would have made the same provision for her husband as he did for Dr. Read and Mr. Rutledge. But, when the testator subsequently declares distinctly the uses and trusts under which Elizabeth’s estate is to be held, he gives construction to the former terms used — “ similar ” and “ correspondent ” — and shows that they are to be “ similar and correspondent,” according to the existing state of things. Any other construction would be to make a will for the testator which he did not make, and may not have thought proper to make for himself. Perhaps the Court has dwelt longer than was necessagc on this point, as it was rather suggested than pressg^éíípp argjíts^nt at the hear-mg. Then, m what manneiAiin<L,.tt) what ext|nt, is this erroneous impression of the def^m&ts’ test^t.^^Jfefect the rights of bis co-tenants? And, in mis ¿i^uiiíyflt is important to distinguish between the rights |trüíe comj^ñfnt^and those of her mother, who is one of theVe%j$ÍÍ¿fer \xyMreen vs. Biddle, 8 Wheat. 69, it is stated to ne^e.gg|i^fal rule of the English Chancery, to allow an account of rents and profits, in all cases, from the title accrued, provided it did not exceed six years, unless under special circumstances. This principle has been repeatedly recognized in South-Carolina. One of the exceptions is thus stated by the Chancellor, in Rowland vs. Best, 2 McC. Ch. 320 : “ It is not an uncommon case for a party, who lies by and permits another to occupy and enjoy property as his own, under an apparent good title, which he might, and ought to have brought into discussion much earlier, to be restricted, m his demand for an account of rents and profits, to the filing of the bill, or four years before.” So far as the complainant is concerned, it is difficult to conceive in what the principle of this exception will avail the defendants. She was left without a father, in early infancy. Her mother was comparatively a stranger to the family; and to her paternal grandfather she would naturally look, both for information in regard to her rights, and for active efforts, if such were necessary, in maintaining them. According to the testimony, she had, at her grandmother’s death, in 1837, derived no estate from her father. While stiil a minor, to wit: in June, 1842, her uncle applied to him in her behalf. The correspondence between them was submitted to the Court. From the evidence of both the witnesses, it is very apparent that the complainant was then entirely ignorant of her rights, and probably of the instrument from which they were derived. It is not less certain, that no light was shed upon the subject, in the communication with her grandfather. Knowing, as he well knew, the existence of John Harleston’s will, whatever construction he may have given it, how can it be maintained that he was permitted by the complainant to occupy, as his own, property, the title to which she might, and ought to have brought into discussion much earlier. But laches is never imputed to an infant. And so it was recently held by the Court, in a very hard case against a bona fide purchaser without notice, who had been in undisturbed possession for fifteen years. In Woodward vs. Clarke, 4 Strob. Eq. 167, it was ruled in the Circuit Court, on the authority of Lahiffe vs. Smart, that the minority of one of the co-tenants protected the others from the bar of the statute, and partition was ordered. It was also decreed that, under the circumstances, the account for rents and profits should be restricted to the time of filing the bill. On appeal from this decree, so much of it was affirmed as confined the account of the adults to the time of filing the bill; the Court declaring, that “ the disability of a co-plaintiff could afford them no advantage in the claim for rents and profits but “ the account of the minor was extended to the period when her right accrued,” and the Circuit decree was ordered to be so modified. The Court is of opinion that the complainant is entitled to an account of the rents and profits from the decease of her grandmother, Elizabeth Corbett, in September, 1837, or rather from the end of that year.
    The defendant, Mary Corbett, is entitled to one-third of the interest of her deceased husband, Richard Corbett. She has interposed no claim at any time, and now submits her rights to the judgment of the Court. It seems, therefore, only necessary to declare that, in making the partition of Farmfield and the five hundred acre tract, one-third of the interest of Richard Cor-bett, deceased, should be set off to her.
    Thomas C. Corbett, the uncle of the complainant, resided with his father until the death of the former, in June, 1846. It is to be presumed that he was satisfied in relation to his interest in the rents and profits from the time of his mother’s death. The complainant’s account of rents and profits, as derived from her uncle’s interest in the freehold, must be confiné’d to the period of his decease, and thenceforward.
    The subject next to be considered is the complainant’s right in the two lots of land on Harleston Green, fronting south-wardly on Montague-street, running in depth to Bull-street, and joining other lands formerly belonging to John Harleston, on the corner. Under the marriage settlement set forth in the pleadings, the complainant, on the death of her grandfather, Thomas Corbett, in July, 1850, became entitled, as the representative of her deceased father, to one-third of the said premises as tenant in common with the defendants, John Harleston Corbett and Margaret Harleston Laurens. By the same deed, fifty-three slaves were settled to the same uses. The bill claims partition .and account. The rights of the complainant, under the marriage settlement, are not controverted by the defendants. But in relation to the two lots of land, running from Montague to Bull-street, on Harleston Green, the defendants say that their late father erected thereon “ a valuable three story dwelling house, and other outbuildings, at his own expense, and from his own means, and occupied the same as his own property for the last twenty yearsand they “ submit that the estate of their father shall be allowed the value of the improvements made by him in any partition to be had.” They insist that “ a portion of the real estate, in its unimproved state, shall be assigned in severalty to the complainant, leaving to those claiming under Thomas Corbett that portion upon which his improvements stand.”
    
      If Thomas Corbett had been tenant in common of the premises, it has been settled that he would not be entitled to compensation from his co-tenants, in partition of the premises. It was so ruled in Thurston vs. Dickinson, 2 Rich. Ecp 317, which has been followed in several other cases. Nor, if he had supposed himself exclusive owner of the premises, would he be entitled to compensation for the enhanced value which his improvements had given to them, except so far as to diminish his account for the rents and profits to that extent. The subject was fully considered in Green vs. Biddle, already cited. It was there ruled that the value of the improvements can never be set up as a substantial demand, but only as a set off against the rents and profits; that beyond this a bona fide occupant, who supposes himself the rightful proprietor, cannot sustain, a claim for the value of his improvements. It was further held, that the bona fides of his possession ceases so soon as he has notice of the adverse title. These conclusions are formded upon the principle that the recovery of a man’s land should not be clogged by conditions and restrictions, which might materially diminish the value of the right; still the application of the rule has sometimes operated great hardship both upon the tenant in common and upoti the bona fide possessor, or purchaser. But if a person knowingly and with his eyes open, erect buildings upon the property of a stranger, the loss of the buildings would entitle him neither to compensation, nor sympathy. If they were erected on the property of his child, they would be regarded as a gratuity. But, when the parent has a life estate in unimproved city lands, to which his children are entitled to a remainder in fee, he consults his own enlightened self-interest scarcely less than the future benefit of his offspring, by the erection of such valuable improvements as add to his income, or contribute to his comfort and convenience. The testator, with his family, enjoyed the use of his improvements for more than twenty years. There is no ground to suppose that he misapprehended his rights, or those of his children, under the marriage settlement. Nor is there any evidence that he contemplated compensation from his children for the improved value which his outlay had imparted to the premises. The silence of the testator’s will in reference to any such claim) is not without influence. He marks the distinction between “the settled estate ” of which the premises on Bull-street constituted a part, and “ his private estate.” The latter he devised exclusively to his son aud daughter, and, as a reason for “ not mentioning ” the complainant in his will, states that “ she will inherit her share of the settled estate, and will receive from her mother’s family an equivalent equal to what his children would get from his private estate.” Did the testator mean that his private estate consisted in part of valuable improvements which he had erected on the settled estate ? Taking the whole will together, it would seem sufficiently clear that the testator proposed to give to the defendants the whole of his private estate, as distinguished from the settled estate, “of which he was then possessed, or might thereafter possess,” and that he recognized the right of his grand-daughter (the complainant) to her share ef the settled estate, as it then stood, as a part of her inheritance. But, whatever may have been the views of the testator, the Court is of the opinion that such were the rights of the complainant upon established principles of this Court. An aceount must be taken of the rent of the premises, and of the hire of such of the slaves as were not engaged in agricultural purposes from the death of the testator in July, 1850, and of such as were engaged in agricultural employments from the expiration of the year, according to the provisions of the Act of Assembly.
    It is not understood that any difference of opinion exists as to the rights of the complainant under the will of her great grandmother, Elizabeth Corbett, deceased. In the moiety of the tract of four hundred and three acres, adjoining the Bossis tract, her interest is precisely the same as it has been declared in the Farmfield tract, except that her account of rents and profits must commence at the close of the year in which her grandfather, Thomas Corbett, departed this life.
    
      The bequest of the personalty is to Elizabeth Corbett and Thomas Corbett, “ to be held, possessed, &c., by them, jointly, during their joint lives, and, upon the death of either of them, by the survivor, during his or her life, and upon the death of such survivor, then to the future, as well as the present issue of the said Eliza and Thomas, equally to be divided among them if more than one.”
    The testatrix died about January, 1805. Two of the children of Eliza and Thomas Corbett, to wit, Thomas, who died 29th July, 1802, and Elizabeth Harleston, who died 22d June, 1804, do not fall within the description of the testatrix’s will, and consequently, as was determined in Rutledge and Rutledge, took no interest in this bequest. With this modification, the rule declared in relation to the devise of Farmfield, under the will of John Harleston, is applicable to’this bequest. A reference must be had to fix the several dates accurately, and report the rights of the parties according to the principles herein stated.
    It is ordered and decreed, that a writ of partition issue to divide the plantation called Farmfield, and the tract of land in St. Thomas’ parish, among the parties, in the proportions to be reported by the Master, on the principles hereinbefore declared, and also to divide the premises extending from Bull to Montague-street, and the negroes specified in the marriage settlement, with their issue, into three equal parts; one part thereof to be assigned to the complainant, and one part to each of the defendants, John Harleston Corbett and Margaret Harleston Laurens, to be held by them respectively, in severalty; also, to divide the moiety of the four hundred and three acre tract, adjoining the Richmond and Farmfield plantations, and the personalty derived under the will of Elizabeth Harleston, deceased, among the parties interested, according to the report of the Master, to be made on the principles herein declared. And if, in the judgment of the Commissioners, partition cannot be advantageously made of any part of the premises above described, then that they make a special return in regard to the same, according to the directions of the Act of Assembly in such case made and provided.
    It is further ordered and decreed, that it he referred to one of the Masters of this Court, to state an account of the rents and profits of the real estate, also of the hire and use of the slaves, upon the principles of this decree, and 'that he have leave to report any special matter.
    The defendants, John H. Corbett and Margaret E. Laurens, appealed on the grounds:
    1. Because the statute of limitations is a bar to the account claimed of rents and profits by the complainant, for more than four years from the filing of the bill.
    2. Because, under the circumstances of this case, no account for rents and profits should be allowed before the filing of this bill, dr at least before the death of Thomas Corbett, sen.
    3. Because the lots embraced in the settlement of Thomas Corbett sind wife, are capable of just partition by metes and bounds; that the larger portion thereof are unimproved, and of more value than the lot which has been improved, and that in making partition among the remaindermen, a-portion of the unimproved lots should be assigned to the complainant as her share, and the lot with the improvements made by the testator, should be assigned to his son and daughter as devisees, at their rateable value, as unimproved lots of land.
    4. Because the complainant is not entitled to any account of the rent of the dwelling house.
    5. Because,'under the said codicil, Elizabeth Corbett took either an estate in fee condition, or an estate for life, with a contingent remainder to her issue surviving her; that in the first case, Thomas Corbett would have been entitled to hold the estate for life as tenant by the curtesy ; and in the latter, none of the issue could take who died in the life time of Elizabeth Corbett.
    The defendant, Mary Corbett, also appealed, on the ground, that she was entitled to rents and profits from the time her title accrued.
    Memminger, Flagg, for John H. Corbett and Margaret H. Laurens,
    cited Steedman vs. Weeks, 2 Strob. Eq. 115 ; 1 Story, Eq. § 655, et seq.; 1 Madd. Ch. 73: Townshend vs. Town-shend, 1 Cox, 28 ; 1 Ero. Ch. R. 550 ; Williman vs. Holmes, 4 Rich. Eq. 475 ; Burleson vs. Bowman, 1 Rich. Eq. Ill; Jes-son vs. Wright, 2 Bligh, 1; Doe vs. Burnsall, 6 T. R. 30 ; 2 Jarm. on Wills, 277, 280 ; Doe vs. Applin, 6 T. R. 82 ; Doe vs. Cooper, 1 East, 227 ; Tate vs. Clark, 1 Beav. 100; 1 Bl. Com. 126 ; 1 1-Iarg. L. Tr. 161 ; 2 Jarm. on Wills, 246.
    
      Macbeth, for Mary Corbett,
    cited Dormer vs. Fortescue, 3 Atk. 124 ; 2 Atk. 282 ; Townsend vs. Ash, 3 Atk. 336 ; Doe vs. Elvey, 4 East, 314.
    
      Petigru, for appellees,
    cited Backhouse vs. Wells, 1 Eq. Abr. 184, pi. 27 ; Fearne, 152, (9th ed.;) 2 Story, Eq. § 487 ; Horry vs. Glover, 2 Hill, Ch. 515 ; Snowden vs. Evans, Rice, Eq. 174; Myers vs. Anderson, 1 Strob. Eq. 344; Wheeler vs. Horne, Wi'lles, 208.
   The appeal was heard in January, 1852, and the following opinion of the Court was delivered by

Wakdlaw, Ch.

Two of the defendants, the devisees and surviving children of Thomas Corbett, in their appeal, claim compensation for the valuable buildings erected by him, on the lot on Harleston Green, during his life estate therein. The reasoning of the Circuit decree is very strong, that if the testator had any equitable right to such compensation, he has not assigned it by his will to these defendants; but, waiving this objection, we are concluded by the course of adjudication in this State, from admitting the claim of a tenant for life to be reimbursed for his improvements of the estate.

It is unjust, that one shall be enriched at the expense and to the wrong of another; and Courts of Equity elsewhere, pursuing this maxim, have allowed, to some extent, the benefit of his improvements, to a tenant in common, or other joint owner, who has improved the joint estate, under the honest conviction of exclusive ownership in himself, or under other circumstances equally strong in natural equity. Such relief is extended only where the refusal of it would operate as a fraud, or unconscien-tious hardship, upon the improving co-tenant. He is not wronged in any just sense, if detriment to himself be occasioned by his own folly and wilfulness. If he be cognizant of the rights of his co-tenants, he may either contract with them concerning proposed improvements, or by easy process of partition, he may obtain his share in severalty; and if lie neither so contracts nor severs, before expending his money in improvements, he must either reckon that-his proportion of the'estate will justify the outlay upon the whole, or intend a gratuity to the other owners. To reimburse the improving tenant in common, to the extent of the cost of the improvements to himself, would enable one of prodigality and capricious taste to deprive his fellows in the tenure of all shares in the common estate, by subjecting them to debts for structures and innovations that were valueless and distasteful. It is scarcely less objectionable to allow to an improving tenant in common, by general rule, reimbursement to the extent of the market value imparted by his improvements to the estate ; for the commercial value does not constitute the whole value of an estate. Some changes might increase the price an estate would bring at auction, which would greatly disparage it in the estimation of some of the joint owners: such as the removal of a monumental ruin for the erection of a shop. One who does not wish to sell his undivided share of an estate, can hardly be compelled, consistently with equity, to pay for improvements, so called, that are offensive to his taste, or to his ancestral-and patriotic pride, or disproportionate to his means. Without further pursuing this train of remark, it is enough to say, that our cases have settled the question against the right of an improving tenant in common, to the exclusive benefit of his improvements. Hancock vs. Day, McM. Eq. 69, 298; Thompson vs. Bostick, 26, 75; Holt & Kerr vs. Robertson, 26, 475; Dellett vs. Whitner, Chev. Eq. 127; Thurston vs. Dickinson, 2 Ruh. Eq. 317.

The equity of a tenant for life against remaindermen for the benefit of his improvements, is inferior to that of a tenant in common in like case. The tenant for life is exclusively entitled to the enjoyment of the estate for an indefinite term of time, as measured by the calendar, always long-in his anticipation; and as to him the inference is more natural that he intends his improvements for his personal use He is not interested in the inheritance, and has little pretension to anticipate the interests or the wishes of his successors. He is an implied trustee for the remaindermen, and by general rule in Equity, trustees are not entitled to the profits of their management of the trust estate. His estate is not unfrequently given, rather for the preservation of the rights of the remaindermen, than for his own enjoyment. Where a bounty to him is clearly intended, it is commonly no more than the enjoyment of the estate, in the existing condition, at the time of the gift, or in a progressive condition contemplated by the donor at the time of the gift. Courts of Equity in England, which admit this equity as to improvements more liberally than we do between tenants in common, have not recognized the claim of a tenant for life to compensation for improvements, except in the case where he has gone on to finish improvements permanently beneficial to the estate, which were begun by the donor. Hibbert vs. Cook, 1 Sim. & Stu. 552. The doctrine, as limited, seems to be approved in ex parte Palmer, 2 Hill, Ch. 217. There, an allowance was made to an executor for improvements put by him on an unimproved lot in the city of Charleston, which by subsequent marriage with the widow of testator, he acquired for life; but the general rule against such allowance to a tenant for life is expressly stated. This, as a general rule, is not unconscientious; and in cases which may seem to be proper exceptions to its operation, as in a gift for life of wild lands, in such terms as clearly import an intended bounty to the tenant for life, which cannot be enjoyed in the existing condition of the subject, the tenant may obtain, by timely application to this Court, either a sale of the whole estate, so that he may enjoy the income, or authority to make improvements permanently beneficial; and he suffers from his own wilfulness, if he proceed upon his own notions of improvement, without asking aid or advice. The Court may sanction what it would have previously authorized, but it encourages no experiments upon its power of retroactive relief.

The inference of gratuity, rather than charge, is made against the heady improver, who disdains to consult in advance his successors in interest, or the Court which may provide for their rights and their wishes. In the present case, the improvements were made by a father on land to which his children were entitled after his life, and as he in his life time made no claim for a debt on account thereof, it is fitly presumed that he intended his improvements as an advancement.

Under the Act of 1791, the Commissioners to whom the writ of partition is directed, have authority to make specific division of the premises, or to assign the whole to one or more of the parties in interest, as well as to recommend a sale. In a proper case, this Court might instruct the Commissioners to assign to the parties, respectively, such parts of the estate as would best accommodate them, and be of most value to them, with reference to their several positions to the property before partition. Storey vs. Johnson, 1 You. and Col. 538, 2 Y. and C. 586. But in the present case, we decline to interfere with the discretion of the Commissioners by instructions in advance, as we do not see that the surviving children of Thomas Corbett have any superior claims to his improvements, to the daughter of his deceased son.

The defendants’ fifth ground of appeal raises the question, whether under the codicil to the will of John Harleston, Mrs. Elizabeth Corbett took an estate in fee conditional in Farmfield and the tract in St. Thomas’ parish, with the incident of an estate for life by the curtesy in her surviving husband. On this question, this Court has not yet attained a satisfactory conclusion ; and this part of the case is reserved for future judgment.

If this question be resolved in favor of the defendants, the parties -to take the lands, and the shares in which they will take, may be different from those declared in the Circuit decree. In that event, too, the claims for rents and profits by the plaintiff and by the defendant, Mary Corbett, would extend to the time only since Thomas Corbett’s death ; and of course, there would be no room for the application of the statute of limitations.

It is difficult to see, in the facts of this case, anything which should limit the demand of Mary Corbett for rents and profits, from the accrual of her right, any more than that of the plaintiff, unless it be by the statute of limitations. If by our ultimate determination, the claim for rents and profits by the plaintiff and Mary Corbett, shall reach beyond the death of Thomas Corbett, the term of the bar of the statute of limitations will become an important inquiry. We are at -present inclined to the conclusion, that, as a general rule, the claim for rents and profits is a personal demand, a debt not by speciality, and is barred by the term which would bar the suits for an analogous claim at law, account, assumpsit, and debt on simple contract. But it is doubtful whether this rule applies to the cases of tenants in common. At common law, if one tenant in common take the whole profits, his co-tenants have no remedy against him. Lilt. Sec. 323, and Co. Litt. 26. By 27th section of 4 and 5 Anne, c. 16, an action of account is given to a tenant in common against his co-tenant, who has received more than his just share or proportion of the profits; but this remedy extends only to the actual receipt of rents and profits, and not to the case where the tenant in common is in the occupation and enjoyment of the premises. Wheeler vs. Horne, Willes, 208. It is clear that the statute of limitations does not run as to the title to the lands themselves, in favor of the tenant in common in possession without actual ouster, against his co-tenants; and we reserve our opinion, whether the incidental claim for profits is governed by the same principle. We decide nothing as to points which may be superseded by our final judgment on the question, whether Thomas Corbett had an estate for life by the curtesy.

It is ordered and decreed, that the Circuit decree be affirmed, and the appeal be dismissed, so far as the partition of the lots on Harleston Green is concerned. In other respects, the questions made by the appeal are reserved for judgment.

Dunkin and Daugan, CC., concurred.

At this Term, January, 1853, the opinion of the Court upon the questions reserved was delivered by

Wardlaw, Ch.

This case was heard at the last sitting of this Court, and an opinion was then pronounced, affirming the Circuit decree, and dismissing the appeal, so far as the partition of the lots on Harleston Green was involved, and reserving our judgment on the other questions made by the appeal. The points reserved depend upon the construction of the codicil to the will of John Harleston, devising the plantation, Farm-field, and a tract of land in the parish of St. Thomas, in trust for his daughter Elizabeth.

When the codicil was executed, the immediate family of the testator consisted of a wife and three daughters — Sarah, the wife of William Read, Jane, affianced, with his approbation, to Edward Rutledge, and Elizabeth, under no contract or engagement of marriage. By his will, the testator had devised to his daughters, in fee simple absolute, the same lands which are settled upon the daughters, respectively, by the codicil.

Besides other provisions, not affecting this litigation, this codicil contains the following devises : And it is further my will and pleasure, and I do hereby direct, that the tract of land called Richmond,” &c., “ devised to my darrghter Jane Harles-ton, by my said will, shall be held by my friends William, Edward and Nicholas Harleston : and I do hereby devise the said land to them, and to their heirs and assigns, in trust to and for the use and benefit of my said daughter, Jane and of the said Edward Rutledge, in the event of the said marriage taking place, during their joint lives: and on the death of either of them, then in trust for the survivor, during his or her life : and on the death of both, then in trust for any lawful issue which the said Jane may leave alive, to be equally divided among them, if more than one, share and share alike, in fee simple: saving and reserving to my wife, Elizabeth, her life estate, residence, and right to plant with her negroes, as given by my will, in the house and plantations of Richmond and Farmfield ; but if it should so happen, that on the death of both the said Jane and Edward, there should be no lawful issue of the said Jane then alive, to take the said estate, agreeably to this will, then in trust, that the said tracts of land be equally divided between my daughters, Sarah Read and Elizabeth Harleston, their heirs'and assigns forever. It is further my will, and I do hereby direct, that the plantation called Rice Hope, which I have devised to my daughter Sarah Read, and the plantation called Farmfield, with the five hundred acre tract in St. Thomas’ parish, which I have devised to my daughter Elizabeth Harleston, shall be held on trust, and fo uses similar to and correspondent with those I have directed in the preceding clause, respecting the Richmond place I have devised to my daughter Jane. To effectuate which intent and purpose, I do hereby devise the said tract of land, called Rice Hope, and the said plantation, called Farmfield, and the five hundred acre tract in St. Thomas’ parish, to my friends William, Edward and Nicholas Harleston, and their heirs and assigns, in trust to and for the following uses and purposes : that is to say, as for the plantation Rice Hope, in trust to and for the use of my daughterSarah, and her husband, Dr. William Read, during their joint lives : and on the death of either of them, then in trust for the use of the survivor, during his or her life : and on his or her decease, then in trust for the use of any lawful issue of the said Sarah, to be equally divided among them, if more than one, in fee simple: but if it should so happen, that on the death of the survivor of the said Sarah and William Read, there should be no lawful issue of the said Sarah alive, to take the said estate, agreeably to this will, then in trust, that the said tract of land be equally divided between my daughters, Jane Harleston and Elizabeth Harleston, their heirs and assigns for ever. And as for the plantation called Farmfield, and the five hundred acre tract situated in St. Thomas’ parish, I do hereby devise the same to my.friends William, Edward and Nicholas Harleston, and their heirs and assigns, on the trusts and for the uses hereinafter set forth : that is to say, in trust to and for the use of my said daughter, Elizabeth Harleston, during her life: and on her decease, then in trust-for the use of the lawful issue of my said daughter Elizabeth, to be equally divided among them, share and share alike : and if it should so happen, that on the death of my said daughter, she leave no issue then alive to take the said estate, then in trust for the use of my daughters, Jane Harleston and Sarah Read, their heirs and assigns forever.”

Elizabeth Harleston, the devisee of the lands which are the subject of this suit, after the death of her father, became the wife of Thomas Corbett and the mother of nine children. She died September 17, 1837, and her issue then surviving were three children, John H., Margaret H. and Thomas, and two grandchildren, Richard C. Laurens, son of defendant, Margaret H., and Elizabeth Corbett, the plaintiff. Of the six children of the said Elizabeth Harleston, who pre-deceased her, namely, Thomas, Richard, Elizabeth, Elizabeth Sarah, Joseph and John, all died infants, intestate and unmarried, except' Richard, who attained full age, and died leaving one child, the plaintiff, and a widow, the defendant, Mary Corbett. Of the issue that survived Elizabeth Harleston, Thomas, second son of that name, died in 1846, unmarried and intestate, leaving his father, his brother, John H., his sister, Margaret H., and his niece, the plaintiff, equal distributees of his estate. Thomas Corbett, the father, continued in possession of the lands devised to his wife until his death, in July, 1850. This bill was filed Nov. 27, 1850, amongst other things, for partition of the lands devised to Elizabeth Harleston, and an account of the rents and profits. The plaintiff attained full age, March 10,1846, more than four years before the death of her grandfather. The extent of the plaintiff’s title to relief in this matter depends upon the construction of the codicil above recited, as to her share in the lands, and also upon the operation of the statute of limitations, as to her share of the rents and profits.

First, as to to the plaintiff’s share in the lands. It is adjudged in the Circuit decree, upon the authority of Rutledge vs. Rutledge, Dud. Eq. 201, that the children of Elizabeth Harleston; as they were successively horn, took vested interests, opening to let in subsequent issue, and of course diminishing in proportion as the issue increased: and that all descendants took equally with children, under the description of issue. The defendants insist, by their fifth ground of appeal, that the said Elizabeth Harleston either took an estate in fee conditional, with the incident of an estate for life in her surviving husband, by the curtesy: or an estate for life, with contingent remainder to her surviving issue, in exclusion of her issue that died in her life time.

It is a general rule, in the interpretation of a written instrument, that the construction be made from all its parts, so as to give, if reasonable, a consistency to the whole instrument, and avoid discordance in its parts. One part helps to expound another ; and, in ascertaining the meaning of any clause, we should consider the whole context. In this codicil, the testator explicitly declares his purpose, that the lands respectively devised to his daughters, Sarah and Elizabeth, shall be held on trusts and to uses similar to and correspondent with those ” created in the preceding clause, respecting the devise of Richmond to Jane. The meaning of this declaration of purpose, by itself, seems plain, that the three daughters should have the same interest, enjoy their several estates, with such change, only, as the variety in their condition required. Elizabeth was not married, like Sarah, nor affianced, with the approbation of the testator, like Jane, and she might never marry, with or without such approbation. No contingent estate, by survivor-ship, in Elizabeth’s future husband, should be implied, under such circumstances: especially when the testator, in undertaking to repeat the declaration of his purposes, omits provision, in her case, for such surviving husband. The same motive which induced the testator to omit provision for the future and unknown husband of Elizabeth, the uncertainty of his suitability, would operate on testator to prevent accretion to the husband’s interests by the death of issue in the life time of the wife. We may imagine motives in a testator for a more strict settlement upon the issue of an unascertained husband of his daughter, hut we should not naturally expect that he would give to such issue estates that might enure to increased advantage of such husband, beyond the contingent rights of husbands, known and approved. Yet such would be the result, in this case, of holding that the issue, as they came into being, tools: vested interests, liable to be transmitted, if they died intestate, to the father and other distributees.

By the careful provision of the testator for cross remainders among his daughters, in case any of them died without surviving issue, we may see his general intent to produce equality among his daughters and their surviving issue. But the language of the testator, in the limitations over, deserves to be carefully considered. In every instance, the gift over is in case the particular legatee leave no issue alive, at her death, to take the estate. I agree to the doctrine of Whitworth vs. Stuckey, 1 Rich. Eq. 404, that the terms employed in the gift over, if defining issue within the rules as to perpetuity, do not necessarily import restriction into the direct gift to issue, so far as real estate is embraced. I may say for myself, without committing my brethren, or intending to impair the authority of the cases upon Bell’s will, and those following the same decision, that I am not satisfied with the reasoning that, even in relation to personalty, if the limitation over, on the failure of issue, be good, the issue necessarily take as purchasers. Chancellor Johnston, however, in the case of Hay vs. Hay, has given satisfactory reasons for some difference of force in the reflex operation of the terms in the gift over, when applied to the different subjects of realty and personalty. Still, I apprehend the true doctrine to be, that the construction of any particular clause is to be made from the whole instrument, and that the limitation over is to be treated as other portions of the context. If there be a confluence in expression of meaning, or pertinent reference in the terms of gift over to the terms of direct gift to the issue, the language of the gift over may properly satisfy us of the intention of the donor in using the phrase issue in the gift to issuh. The terms of the gift over, as other portions of the contest, are referential and expository in relation to any. particular clause, and not absolutely controlling. In the present case, the description of issue in the gift over aids us in the construction, as to the issue entitled to take by direct gift. The estate is to go to others, if the tenant for life, at her death, “leave no issue, then alive, to take the said estate.” This strongly indicates the purpose of the testator, that the issue to take the estate was the issue alive at the death of his daughter, Elizabeth. This purpose is expressed with more pleonasm in relation to the other two daughters, the words “ agreeably to this will ” being added to the description of issue to take the estate: but the meaning is the same.

Much of the difficulty of this case arises from the prolixity of conveyancing which was usual at the date of this codicil. The testator, having created certain trusts as- to the lands devised to his daughter Jane, and expressed his purpose that his other two daughters should hold their lands on similar and correspondent trusts and uses, undertakes “to effectuate his intent and purpose ” by repeating and specifying the trusts as to the devises to his daughters Sarah and Elizabeth. It is beyond dispute, that under the devise to Jane she took an estate for life, with contingent remainder to her surviving issue, a contingent estate, on his survivorship, to Edward Rutledge for life, being interposed : and Sarah and Elizabeth were intended to take similar and correspondent estates. But the testator, or his scrivener, in the gifts to the issue of the latter two daughters, omitted the qualifying words, which the daughter may leave alive at her death,” to be supplied by the context.

We are of opinion that Elizabeth Harleston, under the codicil to the will of her father, took an estate for life, with contingent remainder to her surviving issue, in exclusion of pre-deceased issue;

It is clear, upon the authorities cited in Rutledge vs. Rutledge, without need of reference to other cases, that all the descendants of Elizabeth Harleston, whether in the first or a more remote degree, take the remainder in the estates limited after her life, per cap,Ha-

lt is proper to remark, concerning the case of Rutledge vs. Rutledge, as affecting the construction of the codicil under consideration, that that case was upon a marriage settlement, and that, under marriage settlements, the reasonable and the settled construction is to vest estates in the issue, as purchasers, at the earliest point of time. Besides, there was no such distinct reference, in the context of the instrument there construed, to surviving the mother, qualifying the sense in which the term issue was used, as we find in the present case.

The result of our construction is, that the plaintiff is entitled to one-fifth of the lands devised to her grandmother, Elizabeth Harleston, as issue surviving at the death of said Elizabeth, and to one-fourth of another fifth, as distributee of her uncle Thomas- Mary Corbett, the defendant, has no lot or part in the matter. This conclusion supersedes the necessity of considering the difficult question, whether tenancy by the curtesy is an incident of a fee conditional.

The further question reserved, is as to the operation of the statute of limitations upon the plaintiff’s demand for rents and profits. It is the settled law of this State, that one tenant in common, in exclusive occupation of the estate and per-nancy of the profits, is liable to account to his co-tenants, for their shares of the rents and profits. By the common law, co-tenants have no remedy against a tenant in common, who takes the whole profits. The statute of 4 and 5 Anne, c. 16, § 27, gave an action of account to a tenant in common, against his co-tenant, who had received more than his share of the rents ; but the Court of Law restricted the remedy of the statute to the actual receipt of rents, and denied relief, in the case of exclusive occupation of the common estate, where there was no actual receipt of rents. Wheeler vs. Horne, Willes, 208. This Court, however, afforded relief to co-tenants, where one of the tenants in common was in the exclusive occupation of more than his share of the premises, without receipt of rents in money, or its equivalent. It seems to be just, that while we afford relief to tenants in common, beyond the operation of the statute of Anne, we should hold the additional beneficiaries to the same bar as those within the express terms of the statute. Our Act of limitations bars an account not presented by suit at Law within four years, and account for rents and profits is within the scope of its general terms. In the well considered case of Wagstaff vs. Smith, 4 Ired. Eq. 1, the claim for rents and profits, made by bill in Equity, of a tenant in common, against his co-tenant, in possession of the premises, was held to be restricted by the statute of limitations applicable to account: and we are content to follow such respectable authority. We are of opinion that the statute of limitations bars the plaintiff’s right to an account of the rents and profits, except for the last four years before the filing of her bill.

It is ordered and decreed, that a writ of partition be issued, to divide the plantation, Farmfield, and the tract of land in St. Thomas’ parish, among the parties, according to the principles of this decree.

It is also ordered, that one of the Masters of this Court take an account of the rents and profits of said lands, according to the opinions herein expressed.’

It is further ordered and decreed, that the Circuit decree be modified, as herein indicated, and, in all other particulars, be affirmed.

Johnston, Dunkin and Daboían, CC., concurred.

Decree modified.  