38 Ala. 199 | Ala. | 1861
The bill of exceptions does not show that any exception was taken to the ruling of the court iii relation to the offer
Now it is obvious that the deed contemplated a division •of the property on the marriage .or coming of age of the • daughters. That is the period indicated as the time at •■which it was-the duty of the trustee ¡to make the division. It is obvious, moreover, that the direction that the division ■.should be then made, was intended mainly for the benefit »©f the daughters; .its purpose being, to secure to them, .after their marriage, or .coming of age, and during their lives, the separate use and enjoyment of equal shares of thé ¡property. The division then -made would, it is true, have •the secondary effect of ascertaining ¿he respective portions ■■of the property to which 'the rights of each set of remain•der-men would-attach. But it is not to be doubted, that '•the primary purpose of-making the division at the particular time designated by the donor, was what is above stated. It appears, however, thsitthe trustee failed to perform the ¡¡duty caát upon him, to divide the property on the «marriage or coming of age of the daughters. The evidence itended to show that, without making any such division, he nlelivered.all the slaves to one of the daughters after .heir
Omth-is state of faóts, it is obvious that;*so far'as'the interests of the daughters are concerned, the necessity for a division is obviated, by the arrangement whereby the two interests weremerged, and vested in one-of-the daughters. Id is also* clear, that if the facts were as here supposed,.‘the division of the property which, under the deed, it was the duty of the trustee to-make; on-the marriage or coming of age of the daughters, was no longer practicable when this suit was begun.- The division' intended by the donor was to-’be made, as wo have seen, omthe marriage or-coming of •age of the daughters. The property consisted of a female slave and her increase. From the- nature-of the'property',-., constant changes must be going on in its value- and-amount, so* that, at the time this-.suit was brought, it was manifestly impossible to make-the very division-which should have been made at the- time ■ appointed”by the deed. - In other words, it would not be practicable to so divide the property, iml-S53, as to allot to' each daughter the'very share which would have falten to her if the 'division ha'd been made four or five years sooner. So-far-as the interests of the remainder-men are concerned,- ¿division madSnow would be no ■more in conformity with the requirements'of the deed than one*-which may be" made 'at- the terminatibm off'-'the life-estate. Thé trustee has suffered the time appointed for the division to pass by.'" The donor intended that the division should take' place on the marriage or coming of age of the
The ground,on which the trustee’s right to redhcethe property to’hfe' possession--is placed, that the trust."in -reference to the.division has not" been executed. But,,as we have seen, there was evidence tending-to show thatrby the agency of the trustee himself;-a state‘of facts has been* brought about which renders the execution of that trust, as contemplated by the deed, no -longer-practicable ; and oua-.npinion is, that? if the-facts referred to were established by. the evidence, it was not essential to the defense of.this suit to show, that there had .been an. actual division or partition of the property. Wé think that "-the court erred^in the third charge given; and in refusing to give the fifth charge asked by the-defendant..
We do not intend, by. anything we .-have, said, to express - an opinion adverse to the continuance of the legal title in--,the trustee ; nor are we to be' understood as indicating any opinion upon the question of . the .-right - on duty of thé trustee to protect, by proceedings in ..another,.forum, the interests of the remainder-men.
Judgment.reversed, and cause remanded.