41 Ala. 353 | Ala. | 1867
In this case, upon the points argued by counsel, the appellant introduced evidence, upon which the jury might have legally found a verdict in his favor. It devolved on the appellee to show, that the property bequeathed by the 3d item of the will went into the possession of the tenant for life before the death of Matilda Walker. Whether that would have been a good defense to this action, under the other facts of this case, we intimate no opinion, as counsel have argued this case upon the supposition, that the record showed that the tenant for life had obtained possession of the property, by the assent of the executor, before the death of the remainder-man. In such a case as this, the court should not have given the charge it did.—Henderson
There are other questions, which might have been raised upon the evidence and the charge of the court; but, as they have not been argued, and the evidence may be different on another trial, we shall not notice them.
The judgment must be reversed, and the cause remanded.