14 FEDERAL rmronrma.
this trust Clenisonbecame the trustee, and so remained, certainly up to
the death of his wife. After her death he continued in possession. Did
his relation to the property change at the death of his wife? The com-V
plainant charges that he held the property in trust for his wife for life,
with a power of appointment in her at her pleasure by will, and, in de-
fault thereof, to the limitations of Mrs. Calhoun’s will; and that there
was a default in the exercise of the power; that thus the legal estate re-
‘ mained in him, subject to these limitations. There is nothing before the
court going to show that Clemson ever disavowed this trust, or that he
gave any notice of his holding in his own or in any adverse right. If
there was, it could not avail as against complainant, then and now an
infant. Nor is there any placehere for an executed use, devolving the
legal title on the complainant. The property Fort Hill was purchased
by Clemson at the master’s sale. 1n paying the purchase money, as de-
fendant claims, a part of it only was paid by the money provided under
Mrs. Calhoun’s will. The remainder was supplemented by himself out
of his own funds. The conveyance to him was as trustee for Mrs. Clem-
son under the last will and testament and codicil of Mrs. Calhoun. This
was confirmed by the court. The legal title was thus fixed in him, and
, could not pass out of him but by his deed or will. He made no such
deed in his life-time. By hiswill he devised the property to the de-
fendant, a volunteer, and so charged with all the equities with which his
testator held it. The legal title being thus in Clemson, no suit at law
could have been maintained against him for possession during his life.
Nor can such suit bemaintained at law against the defendant, his dev-
isee of the legal estate. Whatever may be the final conclusion of the
court on this point, the above reasons are sufficient to prevent the dis-
missal of this bill, or the refusal of this motion on the ground of a want`
of jurisdiction.- V
Do the circumstancesof the case warrant a preliminary injunction?
The defendant, as we have seen,—was served with subpoena in this cause
on 28th November, 1888. The bill gave him notice of the claim of
complainant, and her prayer for an injunction against him. Cn the 4th
December, 1888, he addressed his letter to the general assembly of the
state of South Carolina. This, with the document accompanying it, in-
formed the general assembly that he was the devisee in fee for the Fort
Hill plantation, and that he had the right to convey it to the state of
South Carolina upon compliance by the state with certain conditions
therein stated; Thereupon he requested the general assembly to accept
the property thus "donated for and in behalf of the state." Upon re-
ceipt of this letter, both houses, as has been stated, tookaction, and that
promptly Bills were introduced into both houses accepting the gilt. In
each bill in each house is this section as section 1:
.3 "Section 1. That the-state of South Carolina hereby expressly declares that
it accepts the devise and bequest of Thomas G. Clemson, subject to the terms
and conditions set forth in his last will and testament, and that the treasurer
of the state be, and is hereby, authorized and empowered to receive and se-
curely hold the said property, both real and personal, and to execute all nec-