| Ala. | Jan 15, 1844
It is perfectly clear, that the deed, by which the slaves in question were conveyed by Anderson Aber-crombie in trust for Martha E., created an estate to her sole and separate, use; in fact, it asserts, in terms most explicit, that such was the intention of the donor. This being the case, it was competent for her to d.spose of them by will. [Henly v. Philips, 2 Atk. Rep. 49; Ross v. Ewer, 3 id. 160; 3 Bro. C. C. 8.] In Rich
Where a specific legacy is given to one for life, and after his death to another, the legatee in’ remainder was formerly entitled, in all cases, to come into a court of equity, and have security from the tenant for life for the delivery of the legacy to the remainder-man. But the modem rule is not to entertain such a bill, unless there be some allegation and proof of waste, or of danger of waste of the property. Without such ingredients, the remainder-man is only entitled to have an inventory of the property bequeathed to him, so that he may be enabled to identify it; and when his absolute right accrues, to enforce its due delivery. [1 Story’s Eq. 562; Foley v. Burnell, 1 Bro. Ch. Rep. 379; Slanning v. Style, 3 P. Wms. Rep. 336; Covenhoven v. Shuler, 2 Paige’s Ch. Rep. 132.]
Mr. Justice Story says, in all cases “where there is a future right of enjoyment of personal property, courts of equity will now interpose, and grant a relief upon a bill quia timet, where there is any danger of loss or deterioration, or injury to it in the hands of the party who is entitled to the present possession. [2 Story’s Eq. 140-1-2-3, and note 1; Randolph’s adm’rx v. Kinney, &c., 3 Rand. Rep. 397; Latimer, et al. v. Elgin, et al. 4 Dess. Rep.
The grounds, upon which the interposition of equity is asked in the case before us, are — 1. That the person entitled to a life estate in the slaves, is greatly embarrassed with debts, and judgments for a large amount have been recovered against him, and suits, for the recovery of more than four thousand dollars, are still pending. 2. He has made an assignment of much valuable property. 3. The complainants have been informed, that he is preparing speedily to remove the slaves in question. 4. They are apprehensive that executions will be levied on them, and they will pass into the hands of strangers and be carried without the State, so that the complainants will lose their rights, or be compelled to sue abroad for their recovery. 5. That Jonathan A. Hudson is entirely insolvent — has been arrested in Georgia on several writs of capias ad satisfaciendum, — has given bond for his appearance to take the benefit of the act for the relief of insolvent debtors; and according to the laws of that State, will be compelled to deliver up the slaves in controversy in order to obtain his discharge. 6. That Granberry Hudson has interposed a claim to them, which is now in a course of litigation between him and some of the judgment creditors of his co-defendant, in the circuit court of Russell.
Whether the bill, as originally filed, was such as authorized the precautionary or preventive redress which it sought, we will not inquire, as we think, what is called the amended and supplemental bill, presents a proper case for equitable interference. In the posture in which the case comes before us, we must take all the allegations of the complainant to be true This being the case, we are to suppose that Jonathan A. Hudson is insolvent — has been arrested on ca. sas. in Georgia — has given bond to take the insolvent oath, and that the laws of that State are such as they are alleged to be. It cannot be intended that the bond was given merely to obtain a temporary discharge from confinement; and it is quite as fair to infer that the principal obligor contemplated a literal performance of its condition, as that it was his purpose to satisfy the execution by the payment of the money. In fact, the latter presumption cannot be indulged consistently with the idea of insolvency. The execution of the bond, when considered in reference to the laws of Georgia, is equivalent to an
■Again: the assertion of a right to the slaves, by G. Hudson, and the litigation thereof with the judgment creditors of his co-defendant, is, in itself, a strong circumstance in favor of the relief sought. But whether this, and the grounds stated in the original bill, are sufficient to sustain the jurisdiction of the court of chancery, is an inquiry which we need not make; coupled with the ground already noticed, they detract nothing from its force, but greatly strengthen and support it. It follows from what has been said, that the chancellor erred in dismissing the bill for the want of equity. His decree is, consequently, reversed, and the cause remanded.