18 Ala. 84 | Ala. | 1850
Whether the complainant has shown any right to the slaves in controversy depends on the construction of the will of Jordan Anderson, her father, the fifth clause of which is in the following language: “ My will is, that my daughter, Mary, have a negro girl named Mary, exclusively to her and the heirs of her body for ever.” At the time of the execution of this will the complainant was a married woman, and the question is whether the complainant took a separate estate in the slave, or whether she became the property of the husband. There is, it is true, much conflict in the decisions in regard to the words that will create a separate estate in favor of a married woman, and it has been well remarked by counsel, that this conflict in the decisions of courts arises in consequence of two
2. But it is urged that there was no necessity for filing this bill; that it does not appear from the proof that the defendant intended to leyy on the slaves as the property of the husband, and therefore the bill should be dismissed. We cannot agree with the plaintiff’s counsel. The facts disclosed by the proof in this cause, in our opinion, fully authorise the complainant to come into this court, for the purpose of protecting her rights. The defendant had caused an attachment to be levied on the slaves as the property of her husband, who had executed a bond to replevy the same. After judgment had been rendered’ on the attachment, the slaves were demanded by the sheriff. These facts within themselves fully authorise the complainant to come into this court to have her rights ascertained and protected.
Let the decree of the chancellor be affirmed.