Opinion
(December Term, 1859.)
1. The act of 1823, Rev. Code, chap. 37, sec. 21, enabling a remainder in slaves, after a life estate, to pass by deed, has no effect upon a deed executed prior to its enactment.
2. A deed of bargain and sale to one for life, in trust for his own use, conveys simply an estate to him for life, which, before the act of 1823, amounted to the whole interest, and a limitation over after such a provision passed nothing.
THIS was a bill for the partition of slaves, transmitted from the Court of Equity of MARTIN.
Rodman for plaintiffs.
Winston, Jr., for defendants.
James Moore, by deed dated 18 November, 1823, conveyed "unto his daughter Mary Harrell, in trust during her natural life, the two following negroes, Peter and Rosetta, with their increase, for her own use and behoof, and after her death the said property to be equally divided between her four children, James, Mary, Joshua, and Rosannah Harrell, to them and their heirs forever."
Shortly after the execution of this deed the said slaves went into the possession of Joshua Harrell, the husband of the legatee, Mary, and with the increase of Rosetta (now amounting to ten), so remained until his death in 1856. Mary, the wife of the said Joshua, died in 1853.
Joshua, the husband, made his will, and bequeathed most of the slaves in question to others than the persons designated in the above recited deed, and the executor therein named has possession of them, claiming them for the estate of his testator solely and exclusively. The bill is filed by James Harrell, one of the children named in the deed, for himself and as administrator of his deceased brother, Joshua Harrell, Jr., against the executor of Joshua Harrell, Sr., and the rest of the children, insisting, that by proper construction of the said deed, the slaves therein mentioned were vested in Joshua Harrell, Sr., the husband of Mary Harrell, absolutely, in trust during the life of his said wife for his benefit, and after her death in trust for her four children, James, Mary, Joshua, Jr., and Rosannah, absolutely, and the prayer is for a division accordingly.
(230) The answers of the defendants disclosed nothing differing from the above statement, but insisted that Joshua, the husband of Mary, took the absolute interest in these slaves jure mariti.
Prior to the act of 1823, no remainder could be limited by deed at common law upon a life estate in a slave. A conveyance for life was a conveyance of the whole. The deed before us for construction was executed before the passage of that act, and consequently was not affected by it. The rights vested by the operation of the deed could not be divested by the passage of the act.
It is a familiar principle of conveyancing that a deed of bargain and a sale to one for life, in trust for his own use, is simply an estate for life. The deed in question is no more. The bargainor conveys to his daughter, "Mary Harrell, in trust during her natural life, the following slaves, Peter and Rosetta, with their increase, for her own use and behoof." This is a conveyance to her of a simple life estate in the slaves; and as it was prior to the act of 1823, it was, as we have already shown, a conveyance of the whole.
Thus the husband, Joshua Harrell, Sr., became vested jure mariti with an unrestricted estate in the slaves, and they and their increase are rightfully in the hands of his personal representatives, subject to be disposed of according to law and the will of their testator.
It is not supposed that it was impracticable prior to the enabling statute referred to, by deed, to limit a remainder after a life estate in chattels, provided it were done by proper words for separating and keeping apart the legal and equitable estates. That is not done in our case. The trustee and the cestui que trust being identical, there is no estate of any sort outside of the latter, and the results follow as declared above.
PER CURIAM. Bill dismissed with costs.
(231)