#### JOHN M. DICK, et al. v. ALLEN PITCHFORD, et al.

A_iW.il for land and slaves upon trust, to apply annually the rents and profits to the use and benefit of the ces'tei que-trust, for his life, “ so that they shall not be sold or disposed of or anticipated by him,” without giving the estate over in case of an attempted sale or anticipation, does not prevent an assignment of his interest ay the cestui que trust; and the assignee has a right to an account of the rents and profits from the time of the assignment ; but in such case, if there be ulterior contingent trusts, he has no right to call upon the trustee for the surrender of the possession of the trust property. '

A deed by a trustee, relinquishing his legal estate, but without conveying it to any person, is inoperative, and leaves the estate in him subject to all the trusts declared in the deed creating it.

This bill was filed by John M. Dick, Daniel B. Pitch-ford, and Miles Pitchford, against Allen Pitchford, Hezekiah Pitchford, and Branch Pitchford; and its prayer was, the said Allen and Hezekiah might be decreed to surrender unto the complainant, John M. Dick, the possession of the negro slaves, Harriet, Solomon, Elvira, Sally and Frances; and to account with him for the profits of said slaves; and for general relief. All the allegations of the bill were admitted by the defendant, Branch Pitchford, in his answer, to be true; the bill was taken pro confesso, *481against the defendant Hezekiah ; and the sole-controversy was with the defendant Allen Pitchford. On the pleadings and proofs,'(the case appeared to be, that on the 23d of February, 1818, Daniel Pitchford, the elder, of the county of Warren, by a deed of bargain and sale, in consideration of the sum of ten dollars, acknowledged to be paid by Thomas Pitchford, also of said county, conveyed unto the said Thomas, his heirs, executors, administrators and assigns, a tract of land in Guilford county, and five negro slaves, Russel, Sylvia, Nancy, Salisbury, and Harriett, upon the following trust,-that is to say, upon trust “ annually to apply the rents and hire of the said land and negroes, or their issue, or other profits thereof to the use and benefit of Hezekiah Pitchford,” (son of the bargainor) “ during the life of the said Hezekiah, and no longer ; so that they be not subject to be sold or disposed of by the said Hezekiah, or the rents and profits anticipated by him, or be in any manner subject to his debts or contracts ; and after the death of the said Hezekiah, in trust for the three sons of the said Hezekiah, to wit, Branch, Daniel, and Miles Pitchford, or such of them as may be living at the death of the said Hezekiah ; but should the said sons, or either or any of them, die before their said father, leaving issue then alive, such issue shall stand in the place of his father, and have that part or parts,- which his or their parent or parents would have taken, had he or they been alive at the time of said Hezekiah’s death, to them the said three sons, Branch, Daniel, and Miles, in manner aforesaid, their heirs and assigns forever.” Hezekiah Pitchford removed to the county of Guilford, with his three sons; there became embarrassed with debt, and was hard pressed by his creditors. To enable him and his sons, by a disposition of part of this property, to remove these embarrassments, and relieve this pressure, Thomas Pitch-ford, the trustee, on the 22d of December, 1830, executed an instrument under his hand and seal, whereby, after reciting the deed of trust, it is declared as follows: “ Now be it known, that I, Thomas Pitchford, trustee as aforesaid, for divers good causes me thereunto moving, and being further desirous of giving up and relinquishing the *482said trust reposed in me by said deed, I hereby, for myself, my heirs, executors, administrators and assigns, now an<* f°rever relinquish and abstain from all law, authority, or any other interference in any of the fpremises aforesaid, by reason of the said trust-deed, or (Otherwise.” This instrument was, on the 13th of Febru,-ary, 1831, transmitted to James Cole, of Guilford county, inclosed in a letter written in the name of, and subscribed by, the said Thomas, and addressed to the said Cole. The letter also covered a bond of indemnity, to be executed by the said Hezekiah and his sons, and requested the said Cole to have the said bond executed, and the instruments delivered to the proper parties, so that the said Thomas might be discharged from his trust, and the said Hezekiah .relieved from his debts:; with a further request, that “ the A>pys would come down and take their property, and make the other arrangements:” At the date of these transactions, the said Thomas had sufficient capacity to enable him in law to perform valid acts, but his mind, from habitual drunkenness, was in such a state of imbecility, as rendered .the aid of friends necessary for the explanation of any business .not of ordinary occurrence. The nature of the ■instrument, and the purport of the letter, were explained to and understood by him. From the evidence, it is to be inferred, that the indemnifying bond inclosed in the letter was executed. It does not appear, nor can it be inferred, that the sons of Hezekiah took the property, or made the other arrangements alluded to therein; but it is to be .collected, that Salisbury, one of the trust negroes, was, shortly after the receipt of the letter, sold by Hezekiah and .his sons, and the proceeds, or a part of them, applied to :the relief of the said Hezekiah. In the mean time, Sylvia, ■ one of these negroes, had borne issue Evan, Solomon, Elvira, Sally, and Peggy-; and on the 19th of January, ■1832, Hezekiah and his sons ,came to .an agreement for the final disposition of the trust slaves and the increase thereof .between themselves ; and in pursuance of said agreement, ¡and on that .day, the sons conveyed to their father the negroes Russel, Sylvia, and Robert; the' father and his sons, Branch and Daniel, conveyed unto the complainant* *483Miles Pitchford, Solomon and Elvira; the father and his sons, Branch and Miles, conveyed unto the complainant, Daniel Pitchford, Harriet and Sally ; and the' father and his sons, Miles and Daniel, conveyed the others to the defendant, Branch. Thomas Pitchford died in January, 1833, having all these negroes in his possession; and upon his death, they came to the possession of the defendant, Allen Pitchford, his administrator, and so continued up to the institution of this suit. On the 26th of July, 1833, the complainant Miles, conveyed to the complainant John M. Dick, Solomon and Elvira; and on the 9th of August, 1833, the complainant Daniel also conveyed to him Harriet, Sally and Frances, an infant child of Sally. After these conveyances, the complainant Dick demanded from the said Allen, the negroes so purchased by him; which demand was refused, he, the said Allen, alleging, that he was advised he could not rightfully surrender the possession of them, during the Ufe of the said Hezekiah. Upon this demand and refusal, the present bill was brought in December, 1833.

*481June, 1837.

*483 Badger, for the plaintiffs.

Mendenhall, for the defendant, Allen Pitchford.

Gaston, Judge,

after stating the case as above, proceeded as follows: — Upon this case it is necessary in the first place, to ascertain the effect of the qualifications and restrictions imposed by the deed of settlement upon the use or beneficial interest thereby secured to Hezekiah Pitchford. The deed provides, that the trustee shall annually, during the life of the said Hezekiah, apply all the .rents and profits to his use and benefit The trustee has no discretion over these proceeds, and they belong wholly to the said Hezekiah. The deed does not provide that in the event of the said Hezekiah attempting to sell or dispose of the same, or otherwise to anticipate the receipt thereof, that they shall then go over and be paid to some other person; it secures to him, at all events, the enjoyment of the property for life, but prohibits him from transferring it, or anticipating its profits. Now the general right of the giver of property to prescribe the modifications of his *484gift, is subject to the condition, that these modifications be not contrary to law, nor repugnant to the nature of the conveyance; nor incompatible with the legal incidents . f , . , mi r. belonging to the disposition he has made. 1 he power ot alienation is a legal incident of ownership. It is familiar doctrine, that if a feoffment, grant, release, confirmation, or devise, be made upon condition not to alien the estate; or if a term f°r years or chattel personal be granted, upon condition not to assign, such conditions are altogether nugatory. The doctrine obtains not less in courts of eqUity, acting upon those interests which are the proper subject-matter of their jurisdiction, than in courts of law adjudicating upon legal interests. A departure from it would introduce endless confusion, and innumerable mis-chiefs. The capricious regulations which individuals would fain impose on the enjoyment and disposal of property, must yield to the fixed rules which have been prescribed by the supreme power, as essential to the useful existence of property. If under the settlement, a legal estate had been limited to Hezekiah Pitchford for life, he would have taken that estate as one in its nature alienable; and the prohibition against alienation would have been absolutely void. The exclusive right, enforced through the trust imposed on the legal proprietor, to receive the profits of the property thereby conveyed, is, in equity, the estate in that property; and equity must hold a prohibition to dispose of what is his, as wholly inoperative.

Thepower if nexed to shipTf161" property, restraint^ upon such voidT'as the estate1 is equita-whenitis legal.

No doubt, the peculiar provisions in this deed have been borrowed from those restraints upon alienation, and upon anticipation of profits, which in England, and in comparatively modern times, have been introduced into settlements for the separate use of married women, ip order to protect them against the undue influence of their husbands. By the common law, upon marriage, the personal property of the wife becomes the property of the husband, and he is entitled to all the rents and profits of her real estate. But in equity, a separate and exclusive property may be secured to her in personal estate, and in the rents and profits of real estate. Equity, for these purposes, confers *485upon her a capacity which she has not at law, and regards her as a feme sole, so far forth as the settlement makes her the owner of the property. It has been held, by great judges, that this capacity being the creature of equity, may be so moulded by equity, as not to permit it to be abused to purposes for which it was not bestowed. Upon this reasoning, these restraints upon married women have been upheld. Other eminent judges have disapproved of this reasoning, and insisted, that if equity allows a wife to hold property, as though she were a feme sole, the property so held should be subject to all the incidents which belong to the like property in the hands of a feme sole.. Whichever party may have had the advantage in the argument, authority lias settled the controversy in that country. The first instance of express and effectual provisions against anticipation of profits, is said to have occurred in the settlement of Miss Watson’s property,, under the sanction of Lord Tiiurlow, soon after his judgment in Pybus v. Smith, (reported 1 Ves. Jun. 189, and 3 Brown’s Ch. C. 340,) rendered in 1791. Many cases have since come under the consideration of the English Courts, in which the validity of such restraints in settlements for the use of married women, has been conclusively established. In this state, no case of the kind has been judicially considered — and how it would here be determined, it is unnecessary now to say. In the excepted case, where such restraints are allowed, there has been a diversity of opinion, and a conflict of decisions, as to the extent to which they may be carried. An eminent judge, the late Master of the Rolls, Sir John Leach, held, that in order to afford adequate and complete protection to these favoured interests, the power of anticipation may be controlled, even while the feme is single, so as to secure for her a separate estate, in the event of a future marriage; but upon appeal to the then Lord Chancellor Brougham, he reversed the decrees of the Master of the Rolls, and held, that a clause against anticipation annexed to a life-estate in a trust fund settled to the separate and exclusive use of a woman, .does not prevent her, at any time before-marriage, from making an effectual assignment. Wood- *486 meston v. Walker, 2 Russ. & Mylne, 197; Brown v. Pocock, Ibid. 210; and Cooper’s Sel. Ca. 70. But in these cases, and in many others, where the point has been considered, it is admitted, as indisputable, that such restraints imposed on persons having legal capacity to dispose of property, are wholly inept and null. Brandon v. Robinson, 18 Ves. Jun. 429. Barton v. Briscoe, 1 Jacobs, 603. Newton v. Reid, 4 Sim. 141. Jackson v. Hobhouse, 2 Meriv. 482. The Court is therefore of opinion, that the defendant, Hezekiah, could rightfully transfer his interest in the trust property; and declares that this interest, as to the slaves claimed by the complainant, John M. Dick, has been transferred to him, and that he is entitled to an account of the profits thereof, since the interest of the said Hezekiah in the same was transferred to him.

But the said complainant, by his counsel, insists, that he is entitled to the immediate possession of the slaves, and either to a conveyance from the defendant, Allen, of the legal estate therein, or to an injunction, restraining the said defendant from asserting said title. This Court does not think so. If the instrument of the 22d of December, 1830, had not been executed, and the defendant Hezekiah still retained the interest in the slaves given him by his father’s deed, it is very clear, that he would not have been entitled to demand a surrender of the possession from the trustee. He could have claimed no more than what that deed secured to him, the annual profits of the slaves during' his life. If the sons had concurred with the father, in demanding a surrender of the possession, it ought not to have been decreed. Under the deed of Daniel Pitchford, the elder, valuable contingent interests have been limited to the children of the said Hezekiah’s sons, and the legal title was conveyed to the trustee in order to secure these contingent interests, as well as those of the father and his sons. The instrument of the 22d of December, 1830, neither enlarged these interests — nor destroyed the contingent interests — nor changed the duty of the trustee to any of his cestui que trusts. Unquestionably, that instrument was intended to operate as a relinquishment of the legal estate; but it cannot, in law, have this operation, unless it *487availed to pass the title; and this it did not pass, nor purport to pass, to any person whatever. If, indeed, it had transferred the title, there would have been no pretext for asking the aid of a court of equity. The very ground on which this bill seeks relief against the administrator of the trustee, is, that the legal title to the slaves is in him. The instrument not operating at law as a relinquishment, we do not see why equity should decree to it this operation. It is the duty of him who holds the legal estate to perform, and it is the duty of this Court to protect, all the trusts of the original gift, which are not incompatible with law; and to deliver over the possession to those who have an interest to defeat, and might be tempted to defeat, the contingent trusts, would in him, and in the Court, be a breach of duty. The arrangements made between the defendant, Hezekiah, and his sons, and between them and the complainant, John M. Dick, since the execution of the instrument of twenty-second December, 1830, do not, we think, furnish a sufficient reason for the interference asked for. It is not charged, that they, or any of them, have been circumvented or surprised into these arrangements, by the fraud or misrepresentations of the trustee — if such a charge can be considered as intimated in the bill, it is not proved — if distinctly alleged and proved, whatever other redress it might call for, it presents no equity for obtaining what the trustee’s administrator cannot rightfully yield, and what they are not in conscience entitled to demand. Each and every of them should be secured in the enjoyment of the rights, such as they are, which have passed under those arrangements; but a misapprehension as to the extent or value of these rights, furnishes no adequate reason for asking more.

A decretal order will be drawn up for taking an account embodying the declarations of the Court, as to the rights of the parties litigant; and the further consideration of the cause will be reserved until the coming in of the report, or until the Court shall be called on for further directions.

Per Curiam. Order accordingly.