| Ala. | Jun 15, 1854
This bill is filed by a married woman, through her next friend, to protect her separate estate from the creditors of her father, from whom she derived it. It alleges, that in 1830, Charles Lewin, the father of the complainant, some time after her marriage, gave her a negro woman named Martha, who has since become the mother of a boy named Henry; that the woman was delivered to her at the- time of the gift, and has been constantly in her possession since that time ; that the boy was born while his mother was thus held by her, and is still in her possession ; that the donor gave her the slave to her own separate use for life, with remainder to her children ; that she has no trustee, and that the gift was never reduced to writing. It is further alleged, that several years after this gift the donor became embarrassed in his pecuniary circumstances, and among others made a debt to George W. Orabb, on which judgment has been obtained, and an execution issued on it has been levied on the slaves above named; that after this debt was contracted, the donor made a deed to one Dennis Dent, without complainant’s
It is here insisted, that the trusts and uses set up in the bill cannot be created Avithout a writing of some kind, and, as the bill alleges none, it is without equity. By our law, the absolute property in chattels may be passed by delivery, and we can see no good reason why a less interest may not be passed in the same way. At common law, an express trust might be created without writing, when the subject of the trust could be passed without an instrument in writing. — Hill on Trustees 56 ; Gilbert on Uses 270-271 ; Dowman’s Case, 9 (Coke’s) Rep. 10; Porter et al. v. Bank of Rutland et al., 19 Vt. 410" court="Vt." date_filed="1847-03-15" href="https://app.midpage.ai/document/porter-v-bank-of-rutland-6573645?utm_source=webapp" opinion_id="6573645">19 Verm. 410. Thus, it is said, a trust may be created in lands by words only, when it is accompanied by feoffment, or by livery of seizin; or in a chattel, if declared by word at the time of the delivery. Hill on Trustees, supra. We have repeatedly held, that the declarations of the' donor, accompanying the gift, and made at the time of the delivery of the chattel, may be proved to show what interest was intended to be passed to the donee. — Olds v. Powell, 7 Ala. 662" court="Ala." date_filed="1845-01-15" href="https://app.midpage.ai/document/godbold-v-roberts-6502488?utm_source=webapp" opinion_id="6502488">7 Ala. 662; 9 ib. 861; Gunn v. Barrow, 17 ib. 743. In all these cases, the proof thus admitted was received to establish a separate estate in the wife, at the time of the gift of slaves by the father to the daughter, who was a married woman at the time of the gift; and to rebut the presumption of an absolute estate in the husband arising from his possession of the slaves before the terms of the gift had been reduced to writing.
From these cases, with others which may be cited from our own decisions, we conclude, that in gifts of slaves to married women, it is competent to limit the interest they take, and
The whole case made by the bill shows the right of Mrs. Thomas to the slaves in controversy; the danger to that right arising from the conduct of the appellant in levying upon the property of the appellee, to satisfy a debt which is no ‘charge upon it, either at law or in equity; and that, being a married woman, without a trustee to hold the legal estate for her, she is without remedy at law. The bill is a good one, and the demurrer to it was correctly overruled.
We do not, however, think the final decree can be sustained on the proof found in this record. It is a settled and invariable rule in equity, as well as at law, that the allegata et probata must substantially correspond. This is not the case on this record. The bill charges, that the slaves Martha and her increase were given to Mrs. Thomas “ to her separate use for life, with remainder to her childrenwhile the proof is, that she was given to “ Mrs. Thomas and the heirs of her body, free from the control of her husband.” The legal effect of this gift excludes any remainder to the children. The words used are such as were formerly employed to pass an estate
The title made by the bill, and that shown bjr the proof, are essentially different, and for this reason the decree must be reversed.
We would remand the case, that the bill might be amended in the court below, but the amendment required in order to adapt the bill to the proof would make a different case from that set out in the original bill, and for this reason would not be allowable. — Irvine v. McKinley, 13 Ala. 681" court="Ala." date_filed="1848-01-15" href="https://app.midpage.ai/document/mckinley-v-irvine-6503641?utm_source=webapp" opinion_id="6503641">13 Ala. 681, and authorities there cited. It -nay not be amiss to say, that in either the case made by tin , or that shown by the proof, the appellant, who becai- ..editor of the donor after the gift to Mrs. Thomas was } . : :eted by delivery, will not be allowed to charge the slaves with its payment.
Let the decree be reversed, and the bill dismissed without prejudice, at the cost of the next friend of the appellee.