6 Ala. 362 | Ala. | 1844
It is needless to inquire whether the case made by the complainant, is proper for a bill of interpleader, technically so called, [Story’s Eq. Plead. 237,241,] as there are many cases where a bill in the nature of a bill of interpleader, will lie by a party in interest, to ascertain and establish his own rights, where there are other conflicting rights between third persons. Thus a purchaser may file a bill in the nature of a bill of inter-pleader against the vendor or his assignee, and any creditor who seeks to avoid the title of the assignee, and pray the direction of the court, as to w’hom the purchase money shall be paid. So if a mortgagor wishes to redeem the mortgaged estate, and there are conflicting claims between third persons as to their title to the purchase money, he may bring them before the court to ascertain their rights, and to have a decree for a redemption, so that he
The material question to be considered, is, whether the complainants, in order to their own protection, require the relief which they have sought? It is a settled rule of law, that the limitation of personal property, by words which would create an estate tail, if applied to lands, will have the effect to vest the absolute interest in the first taker; because such property cannot be entailed.— [Fearne on Rem. 4C3; 2 Roper on Legacies, 393, and cases cited by these authors. See also, Moffat’s ex’rs v. Strong, 10 Johns. Rep. 11; Patterson v. Ellis, 11 Wend. Rep. 259; Bell and wife v. Hogan, 1 Stewart’s Rep. 536; McGraw v. Davenport and wife, 6 Porter’s Rep. 319.] Such being the rule, the question is, whether the will of Benjamin Averett did not vest in his daughter, Isabella, an absolute property in the slave Jinney. This question may be easily answered by a reference to the adjudged cases, which are numerous and direct. In Saunders v. Hyatt, [1 Hawks’ Rep. 247,] the testator devised to his son a plantation, and lands adjoining, with a limitation as follows, “and if he dies without any lawfully begotten heir of his body, then to his brothers and sisters.” The court W'ere of opinion that the word “heir,” meant “issue,” and would embrace remote lineal descendants of the son, who might come into being long after his death, and would create an estate tail.
The words “heirs of the body,” and “dying without issue,” will' create an estate tail, unless they are restricted by some expression indicative of an intention that the first estate should cease on the first takers dying without issue at the time of his death. [Ld. Raym. Rep. 1561; 1 East’s Rep. 264; 7 T. Rep. 531; 11 East’s Rep. 668; 2 Bos. & Pul. Rep, 485; 4 Har. and McH. Rep. 393; 1 Wash. Rep. 71; 1 Call’s Rep. 187; 3 id. 297; 4 Hals. Rep. 10.]
In Keating and wife v. Reynolds, [1 Bay’s Rep. 80,] the testator bequeathed to his two daughters, slaves and other personal
In McGraw v. Davenport and wife, [6 Porter’s Rep. 327,] this court said, all the cases agree, that the words “die without issue,” when used in a will as a limitation over of personal property, unexplained or controlled by any other circumstance, or language in the will indicating a different intention, do import an indefinite failure of issue. Their effect, when unrestricted, is to vest the entire property in the first taker. These citations very clearly indicate what the rule of law is, upon the question before us. The testator bequeaths slaves and other personal property to two daughters, and declares his meaning tobe, that they shall “inherit the above bequests, and if no lawful heirs of their bodies, then to revert to the family or estate.” The generality of the terms in which the intention is expressed, is uncontrolled by any thing which precedes or follows the clause. It is not attempted
It is not alleged that the laws of South Carolina, (in which State the will in question was made) are, or were variant from the common law which we here recognize as the rule of decision; and we must in the absence of such allegation, intend that they are similar to our own. [Mims v. The Central Bank of Georgia, 2 Ala. Rep. N. S. 294.]
We have only to add that the decree is affirmed, with costs.