Charleston, January, 1853.

John Rumph, Ex'or vs. Thomas Rumph.

Testatrix, by one clause of her will, bequeathed a negro to E. W., a feme covert, "to her and her issue forever;" and by another clause declared, that the negro was not to be subject to the debts or control of E. W.'s husband, and should any attempt be made to the contrary, or the husband attempt to sell or destroy the property bequeathed, the executors should take the same into their possession "and pay over the income to E. W. during her natural life, and then to her issue :"-Held that E. W. took an absolute interest-her issue taking nothing as purchasers.

Before EVANS, J., at Colleton, Spring Term, 1852.

The report of his Honor, the presiding Judge, is as follows: "This was an appeal from the Ordinary. The only question was, whether George C. Utsey, one of the subscribing witnesses, was competent. The fifth clause of the will gave a negro to Elizabeth Utsey, daughter of the testator, and mother of the witness, to her and her issue forever. The seventh clause directed the executor in case there should be any danger of the negro's being sold or destroyed by the husband of the legatee, to take him into his possession, and to pay over the income to her during her natural life, and then to her issue. The question was whether under these clauses the witness took any thing by way of remainder. I was of opinion that under the fifth clause, Elizabeth Utsey took an absolute estate, and that the nature of her estate was not varied by any thing contained in the seventh clause, which was merely directory to the executor, and intended to provide for a contingency which might or might not happen. Upon my so deciding, the jury found in favor of the will."

The defendant appealed and now moved for a new trial, on the ground

Because his Honor decided, that George C. Utsey, was a competent witness to the will of Elizabeth Rumph, and permitted him to be sworn as such: whereas, it is respectfully submitted, the said witness has a vested interest in remainder, after the termination of the life estate of his mother, Elizabeth Utsey, and is therefore incompetent.

Rumph vs. Rumph.

Josiah B. Perry, for the motion, cited Taylor vs. Taylor, 1 Rich. 531. The only question is whether the witness is a legatee. Henry & Archer, Riley Ch. 248; 4 Kent, 229 et seq.; Whitworth vs. Stuckey, 1 Rich. Eq. 412; 1 Strob. Eq. 344; 2 Ib. 66, 175; 4 Kent, 217.

Henderson, Carn, contra, cited 2 Stark. Ev. 744; 4 Halst. 297; 2 Bail. 473; Bail. Eq. 245; 1 Strob. Eq. 193.

The opinion of the Court was delivered by

WITHERS, J. By the testament of Elizabeth Rumph, and the fifth clause of it, a negro was bequeathed to her daughter, Elizabeth Utsey, "to her and her issue forever." By the seventh clause of the testament (as we learn from the appellant's counsel) the negro, so bequeathed, was not to be subject to the debts or control of Elizabeth's husband, and should any attempt be made to the contrary, or the husband attempt to sell or destroy the property bequeathed, the executors should take the same into their possession, "and pay over the income to Mrs. Utsey, during her natural life, and then to her issue."

To this testament, George C. Utsey, the legatee's son, was a witness the question was, whether he was a competent attesting witness. He was so regarded on Circuit, and the same. question is made here, on appeal.

We are not prepared to say (as might seem to be intimated in the circuit report) that a limitation of a remainder to the children of Elizabeth Utsey, vested in interest or estate, though contingent as to whether it would ever be enjoyed in possession, and, if ever, by which of such children, would render any one of such children a competent witness attesting a will containing such a limitation, and this by reason of the contingency that might attend the enjoyment in possession of such an interest in a child. Of course there may be such a remainder vested and transmissible, and our course of decision recognize such testamentary limitation in a slave. An interest of that kind may disqualify an attesting witness. We do not stop to adjudge that. The question here is, does any limitation of an interest, in

Charleston, January, 1853.

the negro bequeathed to the mother, in favor of George Utsey, the son and an attesting witness, appear in this testament ? Does he take any interest, by purchase?

It must be universally conceded, that, by the words of the fifth clause, he does not: The bequest is "to Elizabeth Utsey, to her and her issue forever." There is nothing to tie up the generality of expression, and, according to all authority, it imports a failure in the indefinite line of heirs of the body. That is void as a limitation, void to create an interest by purchase in any but the first taker, and therefore she must take absolutely.

But it is urged that the sufficient restriction is to be found in that provision of the seventh clause which excluded the legacy from the debts and control of Elizabeth Utsey's husband, and in case of an attempt to thwart this provision, directed the executors to take the negro into possession, "and to pay over the income to Mrs. Utsey, during her natural life, and then to her issue."

It is quite obvious, that the purpose of this direction was to exclude, effectually, the intermeddling of the husband, or his creditors. The certain enjoyment of the legacy by Elizabeth during her life, was intended to be secured. Her title, or estate, was not changed, or divested, unless the words "during her natural life, and then to her issue" must thus operate. They apply to the income, not to the corpus. No title is vested in the executors: the possession only was to be assumed by them in the anticipated contingency. Her natural life being determined, the income was then to be paid to her issue. But what issue? Nothing appears to shew that the testatrix really intended to apply any other meaning to issue here, than that which, it is admitted, must apply to it in the fifth clause: no word is used implying children, or other lineal descendants living at the time of her death, or necessarily to be in esse within the prescribed time. Conceding the inclination of the Courts, in some more recent cases, to construe a devise to A. and his children, as amounting to a devise to A. for life with remainder to his children, and if we allow a bequest of personalty in like terms to stand on the

Horlbeck vs. Erickson.

same footing, (and cases of this kind may be referred to as cited by Jarman on Wills, 313, et seq. not much approved by that author,) yet it will be seen that none of them exhibit such broad and unlimited terms as those now under consideration.

Undoubtedly this is a fruitful subject, and a vast deal might be added. It is enough to have indicated the course of reasoning which this court has followed, leading them to the conclusion, that George C. Utsey took no interest under the will of Rumph, as purchaser, and, therefore, was a competent attesting witness to its execution.

Our judgment is, that the Circuit Judge was right, and that the motion be dismissed.

O'NEALL, WARDLAW, FROST, WHITNER and GLOVER, JJ., concurred.

Motion dismissed.

Maria Horlbeck vs. C. Erickson.

Case, with a count in trover, for the value of a negro hired by plaintiff to defendant as a carpenter, and lost during the term of hiring: proof-that the negro was lost while trying, in a boat, to collect and save floating pieces of timber belonging to defendant: the jury, by their verdict for defendant, having found that the act of the negro, in attempting to collect and save the pieces of timber, was without the knowledge or consent of the defendant and during his absence, the Court refused to disturb their verdict.

Before WITHERS, J., at Charleston, Spring Term, 1852.

The report of his Honor, the presiding Judge, is as follows: "The action was in case, and I suppose there was a count in trover, for the value of a negro, Andrew, a carpenter, who had been hired from the plaintiff by the defendant.

"By admissions and witnesses, it appeared for the plaintiff, that the defendant had hired the negro at $15 per month, that

Charleston, January, 1853.

he was a good carpenter, worth from $900 to $1000, that he had never been returned to the plaintiff, and was lost.

"For the defence, it appeared, that on a certain evening, in the absence of the defendant, an old negro man of his was seen in the neighborhood of Smith's wharf, engaged in trying to get together and save pieces of a broken raft of timber, which belonged to defendant. Two boys, not known to the witness, blacks, were seen to come down from the house (a house, as I concluded, occupied by defendant,) and went out in boats, with oars, to assist the old man. They had been engaged for some two hours in trying to get the pieces of timber, floating at ebb tide, together, and to save them, when the defendant appeared in the yard, and, shouting at the top of his voice, directed the negroes to come back, saying, it was not worth while to go after some floating pieces, which they were pursuing. The old negro came back, but the other two, continuing the pursuit, got into the curNear the boats of these two, some negroes were returning to Christ Church in a boat, one or more, and they took away from these two boys their oars. Thus each lost the control of his boat, and each drifted out with the ebb tide. The defendant, when he returned, could not have gotten to either of the boats to compel the negroes to return. One of the negroes, of the two who drifted out, returned the next morning; the other the witness has not since seen.

rent.

"I charged the jury that the defendant was bound to return the negro to his owner, or pay for his value, if he had been lost to her by blameable negligence on the part of defendant. That if the defendant employed the negro, whom he had hired as a carpenter, in a different business, he was quoad hoc an insurer; that he was bound to such care and diligence in his management generally, both as to restraint and otherwise, as a prudent man would exercise in regard to his own. But a wayward act of the negro, in the absence of the defendant, if that caused his loss in fact, ought not to cast the responsibility on the defendant.

"The rules suggested to the jury were derived from our leading cases, which were cited at the bar, and remarked on by the