12 Ala. 446 | Ala. | 1847
In Cook v. Kennerly & Smith, at this term, an agreement was entered into by Kennerly and wife in anticipation of their marriage, by which the personal estate of the latter was conveyed to a trustee for the use of herself and intended husband during their lives; at the death of either of them to the use of the survivor during his or her life; at the death of such survivor, then. to such child or children of the intended wife, and the lineal descendants of such child or children, as may be then living, to them and their heirs forever. This deed of settlement also gave to the wife the power of disposing of the property embraced by the same, by writing under seal, &c., to take effect after her death. It was held, that the deed, so far from divesting the dominion of the husband over the estate of the wife, actually guarantied to him a right to it during his life; that this is clearly indicated by the terms of the deed, and it cannot be said that the husband had no interest in the property,or that
It was admitted that where an interest is given to a woman and her children for their support and maintenance, &c., that the husband of the woman, in virtue of her marriage will have no right which can be sold under execution at law,* but the creditor’s remedy, if any, is in equity, where the interests of the wife and children 'can be separated. The conclusion was, that the life estate of the husband and wife, during the lifetime of the former, in the slaves in question, were liable at law for the debts of the husband.
The deed in the case at bar, expressly declares, that immediately after the solemnization of the marriage of the husband and wife, that the right to the slaves, and the issues,, profits and labor of the same, as well as the interest of the' bonds embraced by the settlement, shall be held by the trustee for their joint and equal use and benefit during their joint lives, and after the death of one of them, then to the survivor, &c., without being in any manner subject to the debts of the husband, &c. This deed, like that in the case cited, excludes the idea of a separate estate in the wife, by giving her such an interest until the marriage is consummated, and declaring that she shall afterwards hold jointly with the husband. The possession of the husband then, invests him with a title to the property settled, in virtue of his marital rights, during the life of himself and wife, and makes it subject to seizure by execution, unless the declaration that it shall not be subject to his debts shall prevent it from having such an effect.
In Rugely & Harrison v. Robinson, et al. 10 Ala. R. 702,
If the deed of settlement is invalid against the creditors of the husband while he lives, the bill of sale must be alike inoperative ; for the latter rests upon, and is dependent on the former. It declares that the trustee shall hold the slaves which it embraces, to the uses and trusts of the settlement. The money which the trustee paid over to the husband, vested in him at least for his life, and the slaves which he substituted for the money, stand in the same situation as it respects the husband’s rights. This is a legal truism which is best illustrated by its statement.
Whether, if it was shown [that the laws of South Carolina, either statute or common, recognized the settlement in question as vesting the wife with an estate which prevented the property from being subject to the husband’s debts, the courts of this State would not sustain it, is a question not presented tn the record. Where the statutes, or the judicial decisions
The view we have taken of this case is adverse to the rulings of the circuit court. What we have said will furnish a guide to ulterior proceedings; we need therefore but add that the judgment is reversed and the cause remanded.