Petty v. Boothe, 19 Ala. 633

Petty v. Boothe

19 Ala. 633 | Ala. | 1851

DARGAN, C. J.

John P, Boothe and Martha R. W, Hodges, just before their intermarriage, entered into a contract respecting her property, which is in the following language; “ Whereas a marriage is about to be solemnized- between John ,P. Boothe and Martha R. W. Hodges, and the said Martha is likely to bring into the marriage property of some value, and it being uuMiao.u mar piovit-icn sixmo to made lor her mamtainance and support, the said Boothe having children by a former marriage, it is therefore agreed and stipulated, that the real estate and negroes that were devised to the said Martha by her father, Richard Hodges, of the State of Georgia, also all other property whiph she may .otherwise hereafter inherit; shall beheld. *639i and remain &he separate and distinct property of said Martha, not subject to any other disposition, save by the joint consent of herself and one of the trustees hereinafter named-and appointed *, the said property, however, to be and remain in the possession, -of the said John P. Boothe, for the1 benefit of the parties. It is further stipulated, that said property shall descend and be inherited by the children of the said Martha, if she has any; but if none, or in case of their death before marriage, or arriving at the age of twenty-one years, then said property to go to said Boothe., It is further agreed, that George C. Hodges, one of the trustees hereinafter named, shall have'full power to sell and dispose of the real estate of said Martha, whenever he may see proper to do so, and appropriate the funds in such way as he may think best for her interest. It is also stipulated and agreed, that 1 George C. -Hodges and James W. Exum be, and they are hereby appointed trustees for -the said Martha, to protect her interest and to attend to the due execution of ¿Ms instrument.”

The marriage was consummated, and some of the plaves were hired, and .the notes for the hire were taken in the name of -George C. Hodges as trustee. Previous to the hiring, however, . the slaves had been in the possession and under the control of Boothe. The complainants having obtained a judgment at law against Boothe, who is insolvent, have filed this bill to subject the money due for the hire of said slaves to the satisfaction of their debts. Upon these -facts, the question arises, whether the contract gives to Mrs. Boothe such a separate estate in the slaves as entitles her exclusively to their labor and profits. The •reciting part of the deed clearly shows that the inducement to .its execution was to provide a support and maintenance for Mrs. Boothe; and the first clause of the granting part (if it may be so termed) fully executes the intention of the parties. The language is, “it is therefore agreed and stipulated, that the real estate and negroes that w'ere devised to the said Martha, by her father, Richard Hodges, of the-State of Georgia, also all other property which she may hereafter otherwise inherit, shall bo held and remain the separate and distinct property -of the said Martha, not subject to any other disposition, save by the joint consent of herself and one of the trustees hereinafter named and appointed.” This clause clearly'secures the property to her, and gives her a separate estate that could not be defeated by her *640husband,, nor subjected to the payment of his debts. It is the next succeeding clause that throws doubt upon the subject, which is as follows:. “ The said property, however, t© be and remain in the possession of the said John P. Boothe,, for. the benefit of the parties.” From this clause, it is argued that. 1 oothe,. the intended husband, was not only entitled to the possession, but also to the profits, for-the joint benefit of himself and wife.. If this is the proper construction, then it is clear that the husband would take the entire profits; for it is the settled law in this State, that personal estate cannot be limited to the joint use of husband and wife; and when it is attempted so to convey personal estate, the husband will take the whole, to the exclusion of the wife.—Allen & Wife v. White, adm’r, 16 Ala. 181; Moss v. McCall, 12 Ala. 630; Bender v. Reynolds, ib. 446; Pollard v. Merrill & Eximer, 15 Ala. 169. But I cannot give to this clause such a construction; it would not only defeat the objeot of the deed, as gathered from the reciting part, but it would destroy the estate of the wife in the slaves, which is secured to her by the preceding clause; for if the husband is entitled to the profits of the slaves under this clause, then there is no contingency in the deed that will divest his interest, save the death of the wife, leaving children surviving her, who should attain the age of twenty-one years, and thus the wife would be excluded from all interest in them. It is one of the rules in the construction of deeds, that if there be two clauses which are utterly inconsistent with each other,, and which cannot le reconciled, or made to stand together, the last shall give way to the first,, the maxim being, “ the first clause in a deed, and the last in a will shall prevail.” — 2 Greenl. Cr., tit. Deed,.ch. 2, p. 300, Even by this rule, (which should never be resorted to until all efforts to reconcile the conflicting parts have failed,) we should have to protect the estate secured to Mrs. Boothe by the first clause, at die expense of the latter. But if upon a view of the whole instrument, effect can be given to the subsequent clause or meaning to tho subsequent words, consistent with the preceding clause, it is then the duty of the court so. to construe them. Let us see if meaning and effect cannot be given to the subsequent clause in this case, consistent with the separate estate secured to Mrs. Boothe by the first clause. The manifest intention, in the first place, was to make a provision for Mrs. Boothe, and, by a subsequent part of the *641deed, it is provided, that tbe property should descend and be inherited by her children. This limits her.interest to an estate for life,. and creates a remainder in favor of her children. It is then further provided, that if she should have none, or if they should die before arriving at the age of twenty-one, then the property should go to the husband. The children, therefore, of Mrs. Boothe, as well as Boothe himself, have a contingent interest in the slaves, and it may be supposed that Boothe, on their account, as well as on account of his wife and himself, would feel an interest, in the preservation and increase of the slaves. For this reason the stipulation may have been inserted, that he should have the possession of the slaves, for the benefit of the partiesj- meaning by the term parties, those who took an interest in the slaves, according to the provisions of the deed'; that is, that Boothe should have the possession of the slaves,, for the separate use of his-wife during her life, and after her death, for himself or her children, as the contingency might happen. This construction would give him the possession of the slaves,, not for his own use, but for the use of all that took an interest in the deed,.according to its provisions ; that is, for the separate use of his wife during her life, and then for her children, if she had any, and if not, for himself. This construction would give meaning and effect to the' words used in the latter clause, and would not bo repugnant to. the preceding one; and this, I think, is the proper construction, to be given to the second clause. It may, however, be said, that it is doubtful whether such was the intention of the parties. But to this it may be answered, that when the subsequent words aim of doubtful import, they should not be so construed as to contradict the preceding words, which arc certain; but if any effect can be given to them, consistent with the preceding part of the deed, they should bo- so construed. In any point of view that we are able to take of this case, we think the deed gives Mrs.. Boothe a separate estate in the slaves, and also in their hire or profits, during her life; for if I have failed to show that the second clause can be construed consistently with the first, then it is evident that the second is inconsistent with the first, as well as repugnant to the object of the deed, as evinced by its recitals?, and this inconsistency, instead of destroying the precedent cs - late, would render void the subsequent clause.

Let the decree be affirmed.