Spear v. Walkley , 10 Ala. 328 ( 1846 )

'GOLDTHWAITE, J.

Without at this time undertaking to decide whether the husband has, or has not, an interest in the profits of the slaves bequeathed by Mrs. Hampton, we are clear he has no such interest in the slaves themselves as is the subject of levy and sale under execution. The title to the slaves is vested in him for a special purpose, and his control over them is, to work them for the use of his wife and children. If they can be taken from his possession by a creditor, the trust, that they shall be worked by him, cannot be carried into effect, but will be certainly defeated. On the other hand, if the profits of these slaves, when worked, constitutes a fund to be' divided between the wife and children, then the wife’s share of that devolves on the husband, and can only be separated and ascertained by a court of equity. This case has a very remote resemblance, if any, to Banks v. Carlton, 7 Ala. Rep. 32, or Branch Bank v. Wilkins, Ib. 589, for in both these cases the use was a general one, for the benefit of the wife, whilst here, the slaves are to be used in a particular mode, and by a particular person.

The judgment, for the error in the charge, is reversed and and the cause remanded.