Fellows, Wadsworth & Co. v. Tann , 9 Ala. 999 ( 1846 )

COLLIER, C. J.

The proof very satisfactorily establishes the execution of the deed about the time it bears date, its attestation by the subscribing witnesses; that Winney and her children have been, and were in Mrs. Tann’s possession when levied on, the names of the children, &c. If the testimony is defective in any thing, it is in the omission to prove that the donor was the owner of Winney at the time the deed was executed. But the examination of the witnesses by .both parties seem rather to treat this as a conceded point, by the failure to call the attention of the witness to it by a direct inquiry. But suppose that Mrs. Tann was herself the proprietor of Winney, if she assented to hold under the deed, accepted it from her father’s hands, and it has been ever since acknowledged by herself and husband, will it not now be supported in the absence of an intention to defraud ? Or is not the acceptance of the deed equivalent to proof of the donor’s right, and will it not estop the husband, who never objected to it, or his creditors from setting up rights in opposition to it? In the one view or the other, the evidence is quite sufficient.

There can be no inference prejudicial to the wife or her children, from the failure of the donor to interpose a trustee. Formerly considerable doubt existed, whether a gift to the separate use of a married woman could be maintained against the legal rights of her husband, without vesting the estate in a trustee for her use. But it may now be regarded as settled law, that such a gift vests an interest in her in equity, and a Court of Chancery will decree the husband to stand as a trustee, for his wife, or direct one to be interposed. [Clancy’s Husb. & Wife, 256, 261.] In the present case, Mrs Tann was a feme sole when the deed was executed, and of course competent to hold property under a gift or conveyance made to herself directly. This being the case a subsequent marriage could not affect her rights in a court of equity.

The words “ heirs of the body,” it has been held, create an estate tail, unless they are restricted by some expression indicative of an intention that the first estate shall cease on the first taker’s dying without issue at the time of his death. And when applied' to gifts or bequests of personal estate, vest the entire property in the first donee. [Darden’s Adm’r et al. v. Burn’s Adm’r and an other, 6 Ala. Rep. 362.] The obvious interpretation of the deed we are called on to consider, is a gift to the donor’s daughter and her children; but the subject of the gift is placed under the control of the mother, who was authorized to employ Winney and her increase “in the most profitable and useful way for the use and support” of herself and her children. The intention of the donor is very clearly indicated. It was to provide fqr the maintenance of the donee then in life, and such children as she had, or might give birth to. Those born at the time the gift was made, if any, were entitled to a proportionate share for maintenance, and those afterwards born, would, as they came into being, be let into an equal participation in the profits.

The children, during the life of their mother, were not entitled to the possession of the slaves in question, nor had they any specific property in them; their interest extended only to a support from the profits derived from their employment. This is shown by the direction that “ Winney shall be under the entire control ánd management of the mother during her life; and after her death the property in the slave, and her increase, shall vest in the children.’’ Here we perceive the donor has provided for the maintenance of his daughter and grand-children, by vesting certain property in the former, and devoting the income to that object. This provision invests the mother and her children collectively with interests which the creditors of the husband cannot divest, as it respects the latter, through the medium of any forum, or as it regards the former, certainly not by levy and sale under execution.

In Spear v. Walkley, at this term,’a testatrix bequeathed by her will to A. S. certain slaves, “ to be held and worked by him for the use of his wife and children, but subject in no way to his debts, contracts or judgments, and at his death to be equally divided among his children,” &c. Held, that A. S. had no such interest in the slaves themselves, as is the subject of levy and sale under execution; that the title was vested in him to work for the use of his wife and children, and if they could be taken from his possession by a creditor, the trust, instead of being carried out, would be defeated in toto. “On the other hand, if the profits of these slaves, when worked, constitute a fund when divided between the wife and children, then the wife’s share of what devolves upon the husband, can only be separated and ascertained by a court of equity.” This decision is directly in point, and shows that the slaves in question cannot be sold under execution, to pay the debts of the husband of Mrs. Tann, without defeating the income from labor which the donor looked to, for the maintenance of the objects of his bounty.

Whether the wife has a separate estate under the deed for her own benefit, we need not inquire; for be this as it may, it is a clear result from the case last cited, that her husband has not such an estate in the subject of the gift as could be seized under process issuing upon a judgment against him. If, in virtue of his marital rights, he is entitled to a share of the accruing profits, a question upon which we forbear even to intimate an opinion, his creditor who would seek its appropriation, must resort to a court of equity, that he may have the interests of the debtor separated from those of the children.

The object of the bill in the case at bar, is to secure the property that it may be made subservient to the purposes of the deed; and in this view, if no other, it is clearly defensible. It is proper as the mother is a feme covert, that equity should designate a trustee, who shall become a depository of the legal estate. This has been directed by the Chancellor. As then, the levy was unauthorized, and could only be arrested in equity, the decree perpetuating the injunction is correct, and is consequently affirmed.