Jasper v. Howard , 12 Ala. 652 ( 1847 )

COLLIER, C. J.

In Spears v. Walkley, 10 Ala. Rep. 328, certain slaves were given by will to a husband, “ 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, then living, and the issue of such as may be dead, taking together the part that would have fallen to their parent.” This court, in considering whether the husband had such an interest in the slaves as could^be reached by his creditors, said, “ we are clear he has no such interest in the slaves themselves as is the subject of levy and sale tinder execution ■” that his title was created for a special purpose, that is, to work them for the use of his wife and children; and if the slaves could be taken from his possession at the instance of a creditor, the trust, instead of being carried into effect, would be defeated. Further, if the profits from their labor .constitutes a fund to be divided between the wife and children, then the wife’s share, which devolves upon the husband, can only be separated and ascertained in equity.

In Fellows, Wadsworth & Co. v. Tann, 9 Ala. Rep. 999, a father gave to his widowed daughter, “ and the heirs of her body,” by deed, a female slave, who he provided should be under her control and employment, in the most profitable way for the use and support of herself, and “ her heirs,” during their lives; after her death the property was to be divided “ among her heirs.” In a short time after the gift, the daughter took possession of the slave, who, together with her increase, have for more than twenty years been treated as the separate property of the daughter and her children ; though the daughter married very soon after acquiring the possession. It was held, that the deed invested the daughter aud her children collectively, with interests which the creditors of the husband could not divest, as it respects the children, through the medium of any forum, and as it respects the daughter (his wife) not by levy and sale under execution against his estate; if the husband, in virtue of his marital rights, has an interest in the slave, and her increase, or the profits accruing from their employment, a creditor must proceed in equity to subject it to his judgment. Further, that as the daughter became covert, a court of equity may appoint a trustee, in whom the legal title shall be vested, so as to support the purpose of the deed.

The slaves mentioned in the third clause of the will were not vested in Mrs. Driver to be disposed of at pleasure ; but during her life she held them in trust to enable her to “ support, school and clothe her children.” After her death, they were to be distributed equally between the children. In this view of the case, it is difficult to distinguish it from those cited. To assimilate it in principle to the former, it was not necessary that the will should have declared in express terms, that the slaves should be worked for the use of the children, or the mother and children, or that they should not be subject to the husband’s debts. In giving them for an object which contemplated that they would be a continual source of profit, the testator must be understood to have directed that they should be profitably employed, and not diverted from the purpose intended, by appropriating them to the payment of the husband’s debts. The affirmation of the one intention implies a negative of the other, and is equally potent as if it had been expressed in totidem verbis.

Conceding that Mrs. Driver and her children were jointly interested in the slaves, or the produce of their labor, and still both the cases are in point; for then the mother and children would have interests collectively, which could only be separated, if at all, through the medium of a court of equity. A court of law cannot, under such circumstances, separate the share of a wife from the portion which should be allotted to the children, and devote it to the husband’s debts.

If the children did not acquire by the will such an interest in the slaves as would entitle them to maintain an action at law for them, against their mother, it by no means follows, that the father has such a right as may be sold under execution. Mrs. Driver had no rights distinct from her children, and the estate of the latter, as well as the intention of the testator would be materially interfered with, if the slaves were made liable to the husband’s debts. The case of Spears v. Walkley, shows that he may hold property under a trust for the benefit of his wife and children without its being subject to the execution of his creditors.

In respect to the case of Copeland v. McAfee, cited by the plaintiff’s counsel, it is true that in one aspect the construction of the will now in question, and the liability of the property bequeathed by the third clause to be levied on to satisfy a judgment against Giles Driver, was presented for decision. But that was a suit in chancery, after a verdict and judgment condemning the property, praying an injunction upon several grounds, and as there was no opinion filed, we are inclined to think that the cause went off upon some objection to the frame of the bill, or its equity. If the question now presented had been considered and adjudicated, it can hardly be doubted but our decision would have been expressed in writing; the more especially as it involved important principles which had not then been decided, and were' left open until the cases cited from 9th and 10th Ala. Rep. were determined, one year afterwards.

If the margin of the judgment designates the trustee of the claimants by the name of Abner instead of Andrew Howard, this will be regarded as a clerical misprision, amendable at the costs of the plaintiffs in error; and the amendment is here made accordingly. This view embraces all the points raised at the argument, and intended to be presented for revision. Our conclusion is, that the judgment must be affirmed.