any individual whatsoever. A proviso producing such a result is against law, repugnant, and void.

It is therefore ordered and decreed, that the defendant deliver to the complainants the property bequeathed as aforesaid, together with the issue of the females. That the commissioner of Colleton district do thereupon sell, after proper notice, the life estate of the defendant in the same for cash, or on such credit as the creditors may think proper. That from the proceeds, the assignees shall, in the first place, be allowed their costs and fees of counsel, the balance to be applied to pay the defendant's debts according to the provisions of the insolvent debtors' act. That the complainants have the benefit of the usual process of this court by attachment or otherwise against the defendant and all others who may have gotten possession of any of the property during the pendency of this suit. That as soon as a sale may be effected as aforesaid, the assignees do file a schedule in the registry of the court, setting forth the persons to whom the property is sold and delivered, in order that the parties entitled to the estate after the death of the defendant may have a speedy remedy in case of any effort to eloign them by a purchaser; and lastly, it is ordered that the defendant pay the costs of suit.

The defendant appealed, and moved to reverse the decree, on the ground that the property bequeathed to him was not liable, and could not be disposed of for the payment of his debts.

By COURT. We concur with the chancellor for the very satisfactory reasons stated in the decree; which is therefore affirmed and the appeal dismissed. Costs to be paid out of the fund.

JOHNSON, O'NEALL, and HARPER, JJ., concurring.
Decree affirmed.

DRAYTON V. GRIMKE.

[RICHARDSON'S EQUITY CASES, 321.]

CONTINGENT LEGACY.-A bequest of personalty to the testator's son for life, and then to the latter's son, if he have one living at his death, otherwise to the testator's two grandsons on their attaining their majority and assuming the testator's name, does not vest in the latter on the first taker's death without issue before the conditions are performed, but is contingent. CONTINGENT LEGATEES ARE NOT ENTITLED TO THE INTEREST or profits of the legacy as maintenance, before it becomes vested, in such a case.

APPEAL from a decree of Johnston, chancellor, respecting the right of the appellants to a certain legacy. It appeared that Thomas Drayton bequeathed certain slaves to his son, William Henry Drayton, for life, and after his death to such son lawfully begotten of his body as he should leave living at his death; but if he should leave no son, or if he left a son, and such son should die under twenty-one, then the testator gave one third of the slaves to the daughters of the said William Henry if he should leave any; and the residue to the appellants, John and Thomas Grimke, grandsons of the testator, one moiety thereof to each, on their arrival at the age of twenty-one, and assuming the surname of the testator. William Henry Drayton having survived the testator, and died unmarried without issue, this controversy arose concerning the right of the grandsons to the said legacy, they being still under age. The chancellor, without noticing John, decided that Thomas Grimke was not entitled to the possession of his part of the legacy until he reached twenty-one, and changed his name, and that the administrator with the will annexed, should retain the profits of the legacy, and use them to the best advantage, until the happening of the contingency. An appeal was taken on the part of John Grimke, on the ground that the chancellor should have decreed also on his rights, and also on the part of both John and Thomas, on the ground that they were entitled to possession of the legacy, or, at all events, to the profits thereof.

King, for the appellant.

Holmes, Grimke, and Petigru, contra.

By Court, HARPER, J.

There can be no doubt but that a legacy to Thomas and John Grimke, upon their arriving at the age of twenty-one years, and assuming the name of Drayton, is contingent, and does not vest till the conditions be complied with, and that in general the legatee is not entitled to interest on such a legacy till it becomes vested. A difference is supposed to be made in this case, from the circumstance of the property's having been given in the first instance to the testator's son William Henry Drayton, in whom it vested, and limited to Thomas and John Grimke, in the event of his dying without children. We think the case must be governed by those of Wyndham v. Wyndham, 3 Bro. C. C. 58; and Shawe v. Cunliffe, 4 Id. 144, in the latter of which the rule is thus laid down by Lord Commissioner Eyre: "If there be a fund, whether residuary or particular, given to A. for life, and afterwards upon

a contingency, which does not take effect upon the death of the tenant for life, the intermediate interest is an interest undisposed of, and therefore falls into the residue." The circumstances in the case of Wyndham v. Wyndham were, that a fund was given to trustees, in trust, to pay the interest to the testator's wife for life, then to his niece for life, and at her death, he gave the fund to the younger children of Helgar Wadham Wyndham, if he should have any, and if not to Wadham Wyndham. The interest was paid to the wife and niece during their lives; at the death of the niece, H. W. Wyndham was living, but had no children, and afterwards died not having had any. The question was respecting the interest which had accrued in the lifetime of H. W. Wyndham, after the death of the niece. Lord Thurlow "thought it surprising that there was no case in which this question had occurred; but said, where interest till an event arrived was not disposed of, it must fall into the residue." The case of Shawe v. Cunliffe was similar in circumstances. The authority of Wyndham v. Wyndham is said to have been approved in Descrambes v. Tomkins, 1 Cox, 133.

It was further contended that the testator had put himself in loco parentis with respect to these legatees, and that they may be entitled to the interest as maintenance, under the rule that in case of a legacy by a parent to a child, interest will be allowed as maintenance, though the legacy be not yet payable, or even not yet vested. There is no ground whatever for this claim. The doctrine is founded upon the natural obligation of a parent to provide for his children, and a presumed intention that they should be maintained. In Harvey v. Harvey, 2 P. Wms. 21, which was the case of legacy vested, though not yet payable, the master of the rolls says: "It would be extremely hard that the children should starve when entitled to so considerable legacies." In Incledon v. Northcote, 3 Atk. 438, interest was given to children for maintenance, though the legacies were contingent, being given only to such children as should attain twenty-one, and Lord Hardwicke said it had often been done. But the cases respecting a person putting himself in loco parentis stand on a different footing. They are founded on an intention inferred from the whole of the provisions of the will, that the legatee shall have the interest, and I am not aware of any case of this sort, in which interest has been given on a legacy not yet vested. In Beckford v. Tobin, 1 Ves. sen. 310, the bequest was to a natural child, with an express direction to apply the interest to education and mainte

nance, and the question was whether the legatee should have the interest from the death of the testator, or from the end of the year. Lord Hardwicke held that the direction for maintenance meant maintenance throughout, and gave interest from the death of the testator.

In Lowndes v. Lowndes, 15 Ves. 301, which was a direct vested 'egacy, in trust for natural children, they were held not entitled to interest from the testator's death, there being no such intention to be collected from the will. Hill v. Hill, 3 Ves. & Bea. 183, was a bequest to apply the interest to the maintenance, education, and advancement of natural children, and they were held entitled to interest from the testator's death. In Acherly v. Vernon, 1 P. Wms. 783, the legacy was vested though not yet payable. As the fund was separated from the residue, and the interest would not pass under the residuary bequest, the chancellor decided upon the intention that no one but the legatee of the fund could take the interest. It seems clear that grandchildren are in this respect considered as strangers, and that if a contingent legacy be given to them with a limitation over if the contingency does not happen, they can not take the interest till the contingency happens and the legacy vests: Haughton v. Harrison, 2 Atk. 329; Butler v. Freeman, 3 Id. 58; Lomax v. Lomax, 11 Ves. 48. There are other cases to the same effect.

In the present case, the legatees are not children for whom the testator was bound to provide; the application is not made on the ground that they need the interest for maintenance, and privately we know they do not. The testator could not of course have intended it for maintenance; he gave the whole to another, and only limited the property to these legatees upon an event which he must have hoped would never happen. The chancellor's decree is affirmed and the motion dismissed.

JOHNSON and O'NEAL, JJ., concurred.

Appeal dismissed.

BARNES, EX'R OF BARNES, V. MILNE, ADM'R OF RICHMOND.*

[RICHARDSON'S EQUITY CASES, 459.]

EQUITY WILL RELIEVE AGAINST A VERDICT, by compelling the parties to submit to a new trial where one having a legal defense was prevented from making it by fraud or accident, without any fault or negligence of

his own.

*This is not a decision of the court of appeals, but a case tried before Chancellor Harder, at Beaufort, and reported in the appendix to Richardson's Equity Cases.

EQUITY WILL DECREE A NEW TRIAL ON THE GROUND OF SURPRISE, where a verdict is obtained against the plaintiff by the production of a receipt signed by his agent, of which he was not notified and probably had no knowledge, and which he had no reason to expect would be produced, where it is shown by evidence obtained too late to be available at law, that the receipt was in reality given for certain money belonging to the plaintiff, which had been sent to his agent by a third person, by the

hands of the defendant.

BILL for a new trial. The facts are stated in the opinion of Chancellor Harper.

HARPER, Chancellor.

Complainant's testator brought an action at law against the defendant, for the balance of an account alleged to be due by his intestate. At the trial, defendant established various demands by way of set-off, and gave, in evidence, a receipt by the agent of complainant's testator to defendant's intestate, acknowledging the receipt of five hundred dollars in money, and an order by Thomas Chaplin on Brown & Tunis for three hundred dollars. The jury found a verdict for the defendant for eight hundred and thirty-four dollars and thirty and three quarters cents. This receipt, however, as proved in the present cause, was for the testator's own money, which had been delivered to the intestate, Richmond, by Mr. Thomas Chaplin, to be carried to the testator, William M. Barnes. The bill seeks to be relieved against the verdict on the ground of the surprise. The bill also states that the testator had paid to the intestate, Richmond, three hundred dollars; the receipt or evidence of which payment was rejected as informal or inadmissible, and claims relief on this ground. So far as respects this latter ground, nothing is shown to warrant the interference of this court. The former, however, stands, I think, on a different footing. It is a well-established part of the jurisdiction of this court to relieve against verdicts or judgments at law by its own decree, or by compelling the parties to submit to a new trial at law, even where the defense is of such a nature as might have been made at law; where the party has been prevented from making his defense, by fraud or accident, without any laches of his own. I think these circumstances must concur that it was out of the party's power to avail himself of the defense, and that this was occasioned by no fault or neglect of his own. See Winthrop, Todd, and Winthrop v. Survivors of Lane, Son, and Fraser, 3 Desau. 323, and note, 325. Unless the plaintiff at law was specially notified that this receipt was intended to be produced on the trial, he had no reason to expect that it would be produced, and could