6 Ala. 418 | Ala. | 1844
The view which we take of the trust created by the will of Mrs. Inge's father, renders it unnecessary to determine any other question connected with the case.
The slaves named in the will arc committed to the charge of the persons therein named, with lull power and control, to be used and managed at their discretion, for the mutual use, benefit and interest of Mrs. luge and her surviving children, and are to be equally divided between her and them, as they become of age, or marry. At her death, the lands, on which the will states she was, at the time of its execution, then living, with certain household and kitchen furniture, were to be sold and divided between her children, as before stated. Although this is an equitable estate merely, in the csstuis qua irusf, there is nothing in the terms used which warrants us to construe Mrs. Inge’s portion as settled upon her for her sole and separate use.
The rule is, that to create an estate for the separate use of a feme sole, that intention must clearly appear upon the face of the instrument. [Clancy 262 to 279; Dunn v. The Bank of Mobile, 2 Ala. Rep. N. S. 152; Lamb v. Wragg & Stewart, 8 Porter, 73.] Here, there is on oral ire absence of any expressions from which such intention can be inferred, and the equitable interest of Mrs. Inge, under the will, is in the same condition, with respect to the marital rights of the husband, as any other equitable estate belonging to a wife. It is true, with reference to all such estates, that whenever the husband goes into equity to obtain possession, either of the estate, or of its rents and profits, the court will compel an equitable settlement upon the wife. [Atherly on Marriage Sett. 350.]
Mrs. Inge, having no separate estate, then, in the property sought to be charged, so far as is made to appear by the answer, it is immaterial what the rights of the husband are; because the bill is not framed for the purpose of subjecting those rights.
The result of this conclusion is, that the bill ought to have been dismissed at the hearing, upon the answer and exhibits.
Decree reversed, and here rendered, dismissing the bill