| Ala. | Jan 15, 1849
The main point involved in this case, was decided in Machen v. Machen, at the present term of this court. It was there held, that a bequest to a married woman, and to her bodily heirs, and if no, heirs, to the right heirs of the donor, vested in the first taker, under the rule of construction adopted in Shelley’s case, 1 Rep. 93: the absolute estate, and the property having been delivered to the wife, by the executor, vested absolutely in'the husband, and upon his death, vested in his-executor, and did not survive to the wife.
In the case before us, the slave is vested in a trustee, for the use of the wife for life, and after her death, to be the joint property of the heirs of the body of the wife. Had the property conveyed by this deed been real estate, the authorities all agree that an estate tail would have been created. Busby v. Greenslate, 1 Stra. 445; 2 Ld. Raym. 873; 2 Salk. 679; Papillon v. Voice, 1 Pr. Wins. 471. But our statute abolishes estates tail; and it is a general rule, that where the words would raise an estate tail in real property, they will give the absolute title in personalty. 7 Yerg. 519; 9 ib. 232. Indeed, by the common law, no estate tail could be created in personal property. The result is, that the abso
That the legal estate was attempted to be vested in a trustee, there being no words to exclude the marital rights of the husband, makes no difference. The trustee, after the property was delivered to the wife, had nothing further to do with it. The husband, having the possession, is entitled to all the rights in the property secured by the deed to the wife, and as we have seen the limitation over could not take effect, the absolute proprietorship in the property vested in the husband. The trustee could not sue the husband, and recover upon his title, for he has no right to the possession. Carleton & Co. v. Banks, 7 Ala. 32" court="Ala." date_filed="1844-06-15" href="https://app.midpage.ai/document/carleton--co-v-banks-6502354?utm_source=webapp" opinion_id="6502354">7 Ala. Rep. 32; Hale v. Stone, at the last term, and authorities there cited. The legal title in the trustee being impotent as against the husband, it is equally so as against his vendee- — otherwise, a perpetual restraint would be imposed by the terms of the deed upon the alienation of the property, which the law will not permit. In such case, it is manifest the trust becomes wholly inoperative. See, as to the intervention of a trustee, Lamb, trustee, v. Wragg and Stewart, 8 Ala. 73" court="Ala." date_filed="1845-01-15" href="https://app.midpage.ai/document/horton-v-smith-6502557?utm_source=webapp" opinion_id="6502557">8 Ala. Rep. 73; Carleton v. Banks, and Hale v. Stone, supra; Cook v. Kennerly, 12 Ala. 42" court="Ala." date_filed="1847-06-15" href="https://app.midpage.ai/document/cook-v-kennerly-6503357?utm_source=webapp" opinion_id="6503357">12 Ala. Rep. 42. In the case last cited, it is said, “ one of the inseparable incidents to the ownership of personal property, is, that it shall be liable for the debts of the owner, and that a restraint upon its alienation is void” — -citing, Brandon v. Robinson, 18 Vesey, 429.
It follows, from what we have said, that there was no error in the first charge given. As to the second charge,which was objected to, we think it but asserts the familiar principle of law, that where property is found in possession of the family, composed of several individuals, the law refers the possession to the owner of the title. We do not think the charge was an invasion of the rights of the jury. They were in