82 Ala. 512 | Ala. | 1886
— The rights of the complainant in this cause depend on the proper interpretation of the deed of Bryan Watkins, bearing date November 27, 1866, made an exhibit to the bill. As to the provision made for the benefit of Mrs. Sarah Gertrude Watkins, the deed excludes the marital rights of her husband, and consequently whatever interest she takes under the deed is equitable, as contra-distinguished from statutory separate estate. — Jones v. Reese, 65 Ala. 134. The deed, giving to the entire instrument its proper construction, vests no estate or interest in John B. Watkins, the husband. — Spear v. Walkley, 10 Ala. 328. We do not understand counsel as controverting this, but as conceding it. The demurrer, therefore, to the original bill, was rightly sustained. The bill was then amended, so as to abandon and strike out all claim of relief based on any interest in John B. Watkins, the husband.
It is manifest that, under the terms of this deed, Mrs. Watkins acquired no present interest in the lands as land, nor in the title to the same; and that she can acquire none during the life of her husband. At her husband’s death, if she survive him, she will be entitled to a life-estate in a child’s part of the land, — a contingent remainder. And during the joint lives of the husband and wife, she is entitled, out of the income and profits, to share in the support equally with her children, while the latter have the additional right to be educated therefrom. This is the extent of her interest.
In the case of Fellows v. Tann, 9 Ala. 999, a father by deed had conveyed property to his daughter, “ for the use and support of herself and her heirs during their lives; ” and after the death of the daughter, the property to be equally divided among her heirs. The daughter was then the widow of one Barnett, but she soon afterwards intermarried with Tann. Under a judgment and execution against Tann, an attempt was made to sell the property in satisfaction of it. The court declined to decide whether the husband took any interest in the property, but decided that, if he took any interest, it could only be reached and
The case of Rugely v. Robinson, 10 Ala. 702, is the first and leading case which bears directly on the question we have in hand. The will in that case conveyed property to a trustee, “ for the use and benefit of the said E. T. R. [husband, son of the testator] and his family, during the term of the said E.’s natural life ; and from and after his death, to the use of such persons as the same may be devised and bequeathed by the said E. T. R. in his will; and in the event no will shall be made, then to the heirs at law of the'said E.” The property was large, and a bill was filed to subject the said E. T. R.’s interest to a judgment against him. It was held that, “ so far as the bequest includes property which is intended to be used jointly by E. and his family in specie, as a house, furniture, household servants, etc., it is incapable of severance, and can not be reached by his creditors.” As to other property, from which a revenue was to be derived by its employment, it was held that his interest could be separated and subjected. That case came again before this court, and the principles first settled were adhered to. — 19 Ala. 404.
In Hill v. McRae, 27 Ala. 175, a bequest was made to a trustee, for the use and benefit of testator’s son Thomas. It directed the trustee “to pay over to the said Thomas, from.time to time, such part of the income of said trust estate, or the whole thereof if required, as may be necessary for the comfortable and reasonable support of the said Thomas, and of his wife and children, should he have any ; the same to be used by the said Thomas.” The will then made provision for the disposition of the property at Thomas’ death. Thomas was unmarried at the time of testator’s death, but married subsequently, and had no children. A judgment creditor of said Thomas sought by bill to subject his share of the income to the satisfaction of the judgment. Relief was denied. In the opinion of the court is the following language : “ In the case before us, the provision is for the comfortable and reasonable support of Thomas and his wife. It is a joint benefit conferred upon both, as we must intend it was contemplated by the testator that they were to subsist at the same board, and
The case of Hill v. McRae, supra, has never been in terms overruled; but the later cases oí Robertson v. Johnson, 36 Ala. 197, and Jones v. Reese, 65 Ala. 134, are relied on as upholding the equity of the present bill. In the first of those cases, following what had been decided in Rugely v. Robinson, 10 Ala. 702, both the principle and its limitation are expressed, and thereby approved, in the following language : “ That a beneficial interest can not be given to one so that it can not be reached by his creditors, unless' such interest is conferred and is to be enjoyed jointly with others, and is also incapable of severance.” And in the later case of Jones v. Reese, 65 Ala. 134, in stating the question for decision, the following language is employed: “Does it [the will] vest in Lewis O. a beneficial interest in the mortgaged premises, or in the rents, incomes, or profits, which is not so joined and blended with the estate or interest of his family, as to be incapable of severance ?” It is manifest that, in neither of these cases, was it intended to overrule, or modify, the principles declared in Rugely v. Robinson, but rather to affirm them. In each of the three cases, Rugely v. Robinson, Robertson v. Johnson, and Jones v. Reese, the property conveyed appears to have been relatively la.rge; so large, that it was thought there would be a surplus above maintenance ; and in the later two cases, it is not shown that there was any part of the property conveyed, which was specially intended to be used jointly by the beneficiaries, as was the case in Rugely v. Robinson. It should be added, however, that the following cases seem to support the ruling of' the court, granting relief in the case of Rugely v. Robinson: Rippon v. Norton, 2 Beav. 63 ; Page v. Way, 3 Beav. 20; Raikes v. Ward, 1 Hare, 445.
The, entire property conveyed in the deed which gave
We hold that, in this case, the meagreness of the provision, the number, condition, and relationship of the beneficiaries, the impossibility of separating the fund without materially impairing the benefit intended for the children, demonstrate that the donor intended his bounty should be jointly used and enjoyed by the mother and children as a family; and that to separate her interest from those of the
Affirmed.