#### THOMAS H. McGEE vs. EDWARD E. HUSSEY.

Where A. conveyed negroes to B. in trust, “ to be kept, hired out, or otherwise disposed of, for the maintenance and support of C. — Held, that C. had no such equitable interest, as was the subject of execution under the act of 1812, (Rev. Stat. eh. 45, s. 4.)

The principle, well established by our courts, is, that the legal estate is not to be transferred or divested out of the trustee by an execution, unless that may be done without affecting any rightful purpose, for which that estate was created or exists. Where the cestui que trust has not the unqualified right to call for the legal estate and to call for it immediately, as where the nature of the trust requires it to remain in the hands of the trustee, who, by the terms of the deed, is to do acts from time to time, the act of 1812 authorizing the sale of equitable interests does not apply.

The cases of Gittis v. McKay, 4 Dev. 174, and McKay v. Wiüiams, 1 Dev. &> Bat. 406, cited and approved.

Appeal from the Superior Court of Law of Duplin County, at the Fall Term, 1844, his Honor Judge Dick presiding.

*256This was an action of detinue, brought to recover five ne-slaves. The plaintiff, in support of his title, offered in evidence a deed from Elizabeth McGee to himself, for the ne-groes jn qUestion, by which these negroes were conveyed to him in trust for her brother William McGee, “ to be kept, hired out, or otherwise disposed of, for the maintenance and support” of the said William McGee. The plaintiff then proved, that he had the said slaves in his possession for six months — that the defendant then came to his house, seized them, and took them off. The plaintiff further proved a demand upon the defendant for the slaves.

The defendant, Hussey, shewed that he was a deputy sheriff of Duplin county, and that he levied an execution in favor of Samuel Houston, against the said William McGee, on the said negroes, and took them into his possession by virtue of such levy. The defendant contended, that William McGee had such an interest, under the deed referred to, as was the subject of execution, and therefore they had a right to levy on and sell the negroes.

The court instructed the jury, that the interest of William McGee under the said deed was not the subject of execution; and the jury accordingly returned a verdict for the plaintiff Judgment having been rendered pursuant thereto, the defendant appealed to the Supreme Court.

D. Reid for the plaintiff,

contended, that a trust liable to execution, is a pure, simple, and unmixed one, in which the cestui que trust has the unqualified right to call immediately for the legal estate. Gillis v. McKay, 4 Dev. 172. McKay v. Williams, 1 Dev. & Bat. Eq. 39S.

Whenever an estate is conveyed to trustees, and they are, by the terras of the deed, required to do any act which makes it necessary for them to retain the legal estate, as if the trustees are to apply the profits for the subsistence and maintenance of another, the cestui que trust is not entitled to the legal estate. Shapland v. Smith, 1 Bro. Gh. Ca. 75. Silves-ter v. Wilson, 2 T. R. 444. 2 Bl. Com. 335, note 52, and *257the cases there cited. Or if it be necessary for the legal estate to remain in the trustee in order to effectuate the intention of the grantor. Equity will not compel its surrender to the person beneficially interested. Jasper v. Maxwell, 1 Dev. Eq. 357. Otherwise, the trustee would not have the means of executing the trust. In this case, the donor knew the embarrassed circumstances of the object of her bounty, and she intended to tie up the estate, so that the profits only should be applied to his support.

It was further argued, that the trust did not come within the operation of the act of 1812; for that, the grantor had a resulting trust under the deed, after the objects for which it was created were accomplished, and cited Story’s Com. Eq. 440, 443.

Strange and W. Winslow for the defendant.

Nash, J.

The only question presented by the case is, had William McGee such an interest in these negroes, as rendered them, in the hands of the trustee, liable to be seized and sold for the debts of William McGee, under the process, under which the defendant acted? The judge, who tried the cause, was of opinion he had not; and in this opinion we entirely agree with his Honor. Questions of a similar kind have so often been before this Court, that the principle governing this case is well established. It is not necessary we should go through a labored argument, or review the numerous cases bearing on the question, to shew that William McGee had no such interest in the slaves, as could be reached by a fieri fa-cias at law. The case of Gillis v. McKay, 4 Dev. 174, furnishes us precisely with the rule governing this. In all cases within the act of 1812, subjecting equitable interests to be sold under execution, the sale of the property by the sheriff divests the legal title of the trustee, and transfers it to the purchaser, who holds the property “freed and discharged” from the trust. Rev. Stat. c. 45, sec. 4. In Gillis v. McKay, the court say, “ the principle is, that the legal estate is not to be transferred or divested out of the trustee, unless that may be done with*258out affecting any rightful purpose, for which that estate was or ex,s£s> Wherever the cestui que trust has not the unqualified right to call for the legal estate, and'to call for it immediately, the act does not apply. If it did,' the sheriff could confer upon the purchaser a larger estate than the cestzii que trust had or could have.” The court proceeded to say, “ if the nature of the trust requires it to remain in the hands of the trustee, who, by the terms of the deed, is to do acts from time to time,” as to receive and apply the profits annually to the maintenance of another for life, or if the profits are to accumulate until a particular period, the case is not provided for by the act. In McKay v. Williams, 1 Dev. & Bat. 406, the cash of Gillis v. McKay, is noticed, and the principle established by it approved. We think this is such a case. The deed conveyed- to the plaintiff the legal estate in the ne-groes, in trust for William McGee. Had William McGee an unqualified-right tb'have the legal estate taken from the trustee and transferred to him, and to have it transferred immediately 1 He had not; because it was necessary the legal title should remain in the trustee, to enable him to perform the trust. He had acts to do, from time to time; he had to keep the negroes hiréd out for the maintenance and support of William McGee, or he was otherwise to' dispose of them for the same purpose. It was evidently not the intention of the donor, that William McGee should have the management or the possession of the negroes. She was unwilling to entrust him with them. Her object was to provide for his support during his life. To permit him, then, to take the legal estate from the trustee, would be to defeat the intention of the donor, and the purpose for which the trust was created — a rightful and legal purpose. And, if he was not entitled to call immediately for the legal estate, according to the principle established by Gillis v. McKay, the case is not wilhin the operation of the act of 1812. He had no such interest in the slaves, as could be reached by an execution at law. The defendant was therefore not justified in seizing them.

Per Ccjriam, Judgment affirmed.