| Ala. | Dec 15, 1878
The common law favored, the marital rights of the husband, and though courts of equity recognized and enforced trusts for the separate use of the wife, to the creation of such trusts, it was essential "“there should have been a clear, unequivocal intent to include the rights of the husband, and to vest in the wife the separate use and enjoyment. No particular form of words was necessary, but from the language of the instrument, and alLthe circumstances disclosed in it, a plain intention that the marital rights of the husband should not attach, and that the wife should hold and enjoy free and independent of them, created the trust. All courts agreed upon this general principle, though as is to be expected, there is much conflict of decision in its application to the varying language employed by donors, in the instruments by which property is conveyed. The mere intervention of a trustee clothed with the legal title, the equitable title declared to be in the wife, but not limited to her separate use, did not prevent the marital rights of the husband from attaching to the interest of the wife, and of consequence did not create a trust for her separate use. — 2 Brick. Dig. 82, § 170. Whether the trust was created, depended upon a careful consideration of the language, and of the whole scheme and purposes of the instrument.
The statutes creating the separate estates of married women have no reference to, and do not affect equitable separate estates, or trusts created by contract, gift, or conveyance for their use. These statutes operate only on “ estates made separate by operation of law, not limited expressly to the separate use of the wife.”- — Short v. Battle, 52 Ala. 456" court="Ala." date_filed="1875-06-15" href="https://app.midpage.ai/document/short-v-battle-6509053?utm_source=webapp" opinion_id="6509053">52 Ala. 456.
The devise and bequest to Margaret A. Hooks, is for her life, with remainder on her death to her children born of her marriage with David W. Hooks. The legal title is vested in the husband as trustee, and the rents, profits, and interest he is directed to appropriate for the use and benefit of his wife and children. As trustee, he is clothed with full power to manage, possess, and control the property for the use and benefit of the wife and children, and is empowered “ to sell and dispose of said lands, whenever he may think it to the advantage and best interest of his said wife and children to do so, and invest the monies arising therefrom in other lands.” It is twice declared that the property given is not to be subject to the debts of the husband. Such a declaration will not of itself, create an equitable separate estate; it does not import an exclusion of the husband’s title, but simply one of the incidents of title. — Bender v. Reynolds, 12 Ala. 446" court="Ala." date_filed="1847-06-15" href="https://app.midpage.ai/document/bender-v-reynolds-6503428?utm_source=webapp" opinion_id="6503428">12 Ala. 446; Gillespie v. Burleson, 28 Ala. 551" court="Ala." date_filed="1856-01-15" href="https://app.midpage.ai/document/gillespies-admr-v-burleson-6505757?utm_source=webapp" opinion_id="6505757">28 Ala. 551. But such a declaration, accompanied
It is the well settled doctrine in this State, that in a court of equity, as to her equitable separate estate, a married woman is to be regarded as a feme sole, and may, without the concurrence of her trustee, unless she is specially restrained by the instrument creating the estate, dispose of it in any mode she may select. The specification of a particular mode of disposition, unless other modes are negatived, does not deprive her of the right to dispose of it in any mode, which would be lawful, if she were a feme sole. — 2 Brick. Dig. 86, § 211.
Affirmed.