Camp v. Coleman , 36 Ala. 163 ( 1860 )

A. J. WALKER, C. J.

The second clause in the will of Joseph Kemp contains a bequest to Mrs. Rebecca Kemp, and vests her with a life-estate in the property therein referred to. Whether she took the title subject to a trust in favor of the testator’s grand-children, is a question which does not arise in this case, but which is considered in the chancery case between the same parties at the present term. Whatever interest was vested in Mrs. Kemp by that clause of the will, she took as an individual, and not as executrix. If a trust was thereby created and imposed on her, it was one which did not belong to the office of executrix, and did not pass to her, co-administrator on her death. — Hitchcock v. United States Bank, 7 Ala. 434; Lucas v. Price, 4 ib. 682; Perkins v. Moore, 16 ib. 14; Hill on Trustees, 237, note 1; 1 Lomax on Ex’rs, 368; Conklin v. Egerton, 21 Wendell, 448; Wells v. Cowper, 1 Ohio, (Ham.) 313; Judson v. Gibbons, 5 Wendell, 228.

[2.] Mrs. Kemp’s continued use of the property conveyed by the second clause of the will, in pursuance to the provisions and directions .of the will, authorizes the implication of an assent to her legacy. — -Walker v. Walker, 26 Ala. 262; George v. Goldsby, 23 ib. 326; Gantt v. Phillips, 28 ib. 275; 2 Williams on Ex’rs, 1180. The assent to the vesting of the estate for life, was an assent to the legacy in remainder; and- consequently, upon the death of Mrs. Kemp, the property went to th,e remainder-men, and did not return to the personal representative of the testator. — -See the authorities collected in Shepherd’s Digest, 187, § 5. The plaintiff had no title to the property in controversy, and the ruling of the court below was correct.

Judgment affirmed.