
    Thompson Swan v. Thomas Ligan and Thomas Rudd.
    The bill stated that a marriage being about to take place between Thomas Swan and Judith Swan of the state of Virginia, the said Thomas and Judith, and a certain William Ligan, as trustee, on the 24tb of Oc-tober_ 1801 executed a marriage contract, which stipulated in the following words:— .
    “This indenture between Thomas Swan of the first part, and Judith Swan, widow of Thomas Thompson Swan, deceased, of the second part, and William Ligan of Amelia county, of the third part. Whereas a marriage is intended shortly to be had and solemnized, the permission of God, by and between Thomas Swan and Judith Swan; and whereas the said Thomas is sessed of a considerable personal estate, consisting of slaves, stock, household furniture and debts, with a legacy bequeathed him by Elizabeth Spencer, his sister; and whereas it has been agreed that the said Thomas Swan, after the said intended marriage, shall receive and enjoy, during the joint lives of them, the said Thomas and JuditK, the interest and occupation of the said personal estate; but in case the said Judith should survive the said Thomas, .it is agreed on that she should exclusively enjoy the sole benefit, profits and emoluments of two negroes, to' wit, Sawney, a negro man, and Jane, a negro girl about thirteen' years of age, during her natural life; and after her death, to the issue of this intended marriage (if any);—in default of such issue, to be equally divided among the surviving children of said Thomas, by his first marriage. It is also agreed to, that the said Judith should receive out of the estate of the said Thomas a horse of her choice, oh the same terms and'considerations as the negroes aforesaid. And whereas a provision is made, by the last will and testament of Elizabeth Spencer, deceased, for the support of the children’ of Judith Swan by her late husband Thomas Thompson, Swan, deceased; and as such support hath been furnished entirely at the expense and industry of the said Judith, it is now agreed on that whatever sum she may be allowed, on a reasonable calculation, shall be considered as the exclusive property of said Judith, and at her own disposal. Now the indenture witnes-seth, that in pursuance of the before recited agreement, and in consideration of six shillings lawful money of this commonwealth to the said Judith in hand paid, by the said William IAgan, at or before the sealing and delivery of these, presents, the receipt whereof is hereby acknowledged, she, the said Judith Swan, by and with the privity, consent and agreement of the said Thomas Swan, testified by his being made a party to and his sealing of these presents, hath granted, bargained, sold. assigned, transferred and set over unto the said William IAgan, his executors, administrators and assigns, the two negroes aforesaid, horse, and that part of the estate bequeathed by Elizabeth Spencer, deceased, for the support of her children, to have and to hold the said property hereby conveyed to his heirs, executors, administrators or assigns, upon such trust nevertheless, and for such intents and purposes, and under such provisions and agreements, as are hereinafter mentioned; that is to say, in trust for the said Judith and her assigns, until the solemnization of the said marriage, then upon trust, that he, the said William IAgan, his heirs, executors, &c. shall and do permit the said Judith and Thomas, during their joint lives, to have, receive, take and enjoy all the interests and profits of said property hereby assigned to and for their own use and benefit: but in case the said Judith should survive the said Thomas, he, the said William, shall and do assign over, and transfer to her, the said Judith Swan, the aforesaid two negroes, horse and other estate, to be appropriated as aforesaid. And it is further covenanted and agreed ,to between the parties aforesaid, that all, the estate which she, th'e said Judith Swan, now possesses shall be considered as her exclusive property, and at her disposal.”
    
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      1826.
    
      Columbia.
    
    
      The bill also stated, that after the marriage contract the said Thomas and Judith intermarried; and some years after the said Thomas died, leaving the complainant, the only issue of the marriage, and his widow, the said Judith, him surviving; and that William Ligan, the trustee, was dead; and that Judith Swan, at the time of the death of her husband, and for several years after-wards, resided in the state of Virginia, and being in possession of the negro girl Jane, under the marriage contract, sold her to Thomas Ligan, who was fully apprized of the marriage contract, and of all the right, title and interest she had to the negro, and that Thomas IA-
      
      gan took the negro into possession, and afterwards sold her to Thomas Rudd in fee. The bill prayed that Thomas Ligan and Thomas Rudd might be decreed to deliver UP t0 complainant the negroes in question, or account'for their value: and that if it should be determined that defendants were entitled to hold possession of the negroes during Judith Swan’s life; that they should be decreed to deliver them up on that event, or account for their value.
    The defendants filed a demurrer on the following grounds.
    
      First. Because Judith Sioan should have been made a party, as she was alive, and within the jurisdiction of the . Court.
    
      Second. That the legal representatives of William Ligan, the trustee; alone could sue, and should have . been made a party.
    
      Third. That the complainant had adequate remedy at Law, and the Court of Equity had no jurisdiction.
    Chancellor Thompson overruled the demurrer:
    from which order the defendants appealed, and moved the Court to reverse the Chancellor’s decision, on the grounds taken in the Court below.
    
      Irby, for the motion,
    cited Cooper’s Pleadings, 33.
    
      O’Neall, contra,
    cited Desaus. Rep. 29. 2 Fearne, 46,7, 8. 2 Fearne, 474. 2,Caines’ Cases in Error, 175. 1 John. Ca. 417. ' < •
    
    
      Irby, in reply.
    The trust was executed in her as soon as her husband died.
    January 1826.
   CuRia, per

Colcock, J.

On the first ground of demurrer in this case it is only necessary to remark, that by the deed of trust, Judith Swan takes only a life estate, and it is alleged she has sold; she therefore can have no possible interest in the case. The rule, as laid down in Cooper’s Equity Pleading, 33, is, that all, who are either legally or beneficially interested in the subject matter and result of the suit, must be made parties. Now she can have no legal right having sold ; and having been only so far interested-as her life estate extended, she can have no beneficial interest.

None but those legally or beneficially interested in the subject matter and result of the suit need be Parties-

A trustee ma(ie a party, executed his trust pei.ty delivér-ed to receive

When one nal property with a knowledge of the remainders vested in a particular individual, he a^t^for such individual ; and may, under circumstances, be compelled to give security for " the forthcoming of the property, or to prevent its being squandered.

The second ground is equally untenable. Ligan was appointed trustee by the deed, to hold first for Judith and assigns until the marriage, and then for the joint benefit of husband and wife during their lives; and if she survived her said husband Thomas, then that he would assign over and transfer to her, the said Judith Swan, the property to be appropriated as said, after the death of the husband. It is therefore to be presumed, that the property was delivered to her, the trust executed by William Ligan.

In support of the third ground little could be said which did not go to defeat the right of the defendants; for the complainant could not have a remedy at law unless the life estate has been forfeited, a point we cannot now determine. But the bill has a double tj-» 1 . . it, _ . aspect. It the complainant should not succeed in establishing a claim to the immediate possession of the property, he might have a claim to the assistance of this . Court to secure the enjoyment of his ulterior rights. For it is clear, that one who purchases a life estate, with full knowledge of the existence of a deed by which the remainder is vested in a particular individual, becomes thereby a trustee for such remainder man, and might, under circumstances, be required to give security for the forthcoming of the property. In the case of Latimer et al. v. Elgin et al. 4 Desaus. Rep. 26, the Chancellor says, “the interposition of the Court to protect the rights of persons entitled to personal estate, on the death of an intermediate person who has the enjoyment for life, from being squandered away, is a clear established branch of its jurisdiction. And the system of equity he very imperfect without it. For there is no remedy at law in such cases. It is analogous to the doc-trjne 0f waste in relation to real estate; but it also rests on the general foundation of equity .” And he refers to 2 Fearne, 34; and 2 Freeman’s Rep. 206, is also cited. It is there clearly laid down, that upon a devise of goods to A. for life, with remainder to B. that it Was a good devise to B.; and he might exhibit his bill against A. to compel him to give security that the goods should be forthcoming at his decease ; and that it was the same whether the goods, or the use of the goods, were devised for life. In the case of Hyde v. Parrot, 1 P. Wms, 1, Lord Somers decided the same point ; and in the case of Foley v. Burnell, Fearne, 410, (7th Lond. Edit.) 1 Bro. C. C. 274, the Court admitted, that the ultimate devisee of a chattel might come to the' Court to protect the property from destruction by a tenant for life. And Mr •Fearne, who was a great lawyer, lays it down expressly, that the Court is well warranted to give protection in such easel. Fearne on Executory Devisees, p. 413, (7th Lond. Edit.)

The first trustee for the henefitof .those having subsequent interests.

voluntary stands as one with notice.

The Court considers the first taker as a trustee for the benefit of those having subsequent. interests. Fearne, 444 ef seq. (7th Lond. Edit.) So also in the case of Wamburzee v. Kennedy et al. 4 Desaus. Rep. 474, it was he]d by the Chancellor, “ that in the case of a purchaser for valuable consideration with notice of the trusts, or a voluntary conveyance without notice, the purchaser or vojuntary grantee would hold the property liable to the trust;” and he refers to the case of Mansell v. Mansell, 2 P. Wms, 678. And it is also stated in the complainant’s bill, that the property has been withdrawn from that jurisdiction under which it was placed by the parties to the trust deed: that it has been removed from Virginia— Now if in the trial of the merits of the case it should appear, that the complainant has done nothing to affect his rights, he may be entitled to the aid which is afforded in such cases. The demurrer is therefore overruled, and the defendants ordered to answer to the bill of complainant. Motion refused.

Decree affirmed.  