Broome v. Curry's Adm'rs

19 Ala. 805 | Ala. | 1851

DARGAN, C. J.

The'Erst and the material inquiry in-this case is, does the evidence show a legal title to the slave in the plaintiffs. By the will of Joseph Pack-, sen., certain property, real and personal, was given to Dorcas Broome, a daughter of the testator, for life, for her sole and separate use, and after her death to be equally divided amongst the children that should be alive at her death. The testator, after making provision for his other children, bequeathed the residue of his property to his wife during her life, and directed his executors to sell the ’same at her death and divide the money arising from such sale equally amongst his children, to be held by them as the property respectively given them by the will was to be held. The residue of the testator’s estate, given to his wife for life, consisted principally of slaves, one of which was Tom, the slave in controversy. Shortly after .the death of the testator, owing to the old age of his widow, the slaves were divided amongst the children, they stipulating to pay the widow, their mother, a certain annual sum during her life. Tom, the slave sued for,, with some others, upon the division,' fell to the lot of Dorcas Broome. He went into her possession, or into the possession of her husband, who after retaining him in possession for a year or two, sold him. He was again sold and finally purchased by the defendant’s intestate-. At the time of the division alluded to, some of the plaintiffs were not born, and none of them of -age. Airs. Broome is now dead, and the plaintiffs, except James ’C. Bradford, who married her daughter, are her children. These are the facts upon which arises the question, have the plaintiffs shown a legal title to the slave? We cannot hesitate to say that they have not. By the will of the testator, they can make claim to nothing except to the sum of money that should or would have, been allotted to their mother, upon the sale of that portion of the testator’s estate given to his wife for life; but through this will they obtained no legal title to any part or portion of the property itself; nor can the division of the slaves amongst the children of the testator give to the plaintiffs a legal title to the specific slaves ■-allotted to their mother. We do not-intend to'deny the general rule, that those who will be entitled to - the money upon the sale ■of property, may, if they-are-capable of making the election, ’hleet to take the property itself in lieu of the money; and I ad-'"tait that if the property be personal, a party coming into posession of his share 'would have a legal title to it. -But I look upon - the division of the slaves as giving the plaintiffs no more or other right than if their mother had received her portion of the -money, and then purchased slaves with it; and in such a case, it is certain that the plaintiffs would not be legally entitled to the slaves so purchased. Indeed, it may be well doubted whether they could claim even an equitable "title tó" the slaves, in the case ■ we have supposed; for I do not see why the tenant for life of money, who is entitled to its possession, may not use it as he sees lit in the purchase of ¿property, unless those in remainder restrain him on the ground of danger to their ulterior interest; 'loor can I conceive how the remaindermen can, even in eqhity, claim the benefit of his contracts as their own. The tenant lor life is entitled to the use of the moneyand if he purchases property with it, to give the remaindermen the specific property and not the money would be to give them, to some extent, the use and-benefit of the money during the life of the tenant for life. In the case of Black v. Ray, 1 Dev. & Bat. Eq. 443, one having a life-time estate in slaves sold them, and with the-proceeds bought others; those in remainder, after the death of the tenant for life, filed their bill to-recover the slaves so purchased, on the ground that they "were purchased with the money to'which 'they were entitled after -the death of the tenant for life. The Supreme Court of North Carolina denied their title to the specific property, but allowed them a lien on the slaves to the ex tent'of the money to which they were entitled, in" consequence of the • sale-of the slaves by the tenant for life. This case shows'that those in remainder cannot claim the benefit of contracts made by the tenant for life, with money to which he was entitléd until his death. The case of Palmer v. Wakefield, 3 Beav. 227, in effect holds the same doctrine.

It is not, however, necessary to decide, in this case, whether the ’plaintiffs could claim -the specific property by bill in equity, or a lien upon it, in the hands of a bona fide purchaser, for the -suit is at law, and they must show a legal title, and this we are satisfied they have not done. They only show a fógal title-under the will of their grandfather to a sum of money, after the death of their mother; this is a legal debt against her estate,. and if they would pursue property purchased with the money, or received in lieu of it, they must resort to a.court of equity. They cannot be permitted to recover'the property itself ate law..

This view shows that there _ is no error in the charge of the-court, and the judgment is consequently affirmed.