Putnam J. drew up the opinion of the Court. We think that the counsel for the defendant judged wisely in not arguing this cause. There is no legal or equitable defence. We have examined the will of Thomas Melvill, and it is perfectly clear, that the testator did not convey the property, real or personal, to his son, Thomas Melvill junior. The legal title remained in the father during his lifetime, and upon the probate of his will it vested in the plaintiffs, by relation, from the time of the decease of the testator, upon the trusts set forth in the will. The father was a gentleman of large property.

He was able and willing to make a proper provision for his stin and family by employing him to carry on a large farm. By the terms of the leases which make a part ol the case, the son was to have a salary; his family were to be supported ; the charges for labor and other expenses of carrying on the farm were to be allowed ; and the son was to account to the father for any surplus that should remain. And the surplus was to be entirely at the disposal of the father. But in the mean time the right of property in the real and personal estate remained in the father.

The son was authorized to carry on the farm, to use the tools and implements of husbandry, to receive the produce of the land and stock ; and was to render an account according to the terms of the lease. But it is perfectly clear, that the son, by that arrangement, acquired no legal title in the real or personal property. The plaintiffs, after the probate of the will, had all the right and title which the testator had, in the property which the defendant attached as belonging to the son ; and they are legally entitled to maintain this action.

It was a question of property properly submitted to the jury, and the judgment is to be rendered according to the verdict. Shaw C. J. did not sit in the case.