17 Ala. 62 | Ala. | 1849
The first question we propose to examine is, whether the words used in the will are sufficient to sustain the limitation over in favor of the sister and brothers of Mary Ann, should they survive her, and should she die without heirs-of her body.
I will here observe, that there is no question involved in more doubt and difficulty, or that calls more loudly for legislative aid, than the one, what words will be sufficient to create a good limitation over, by way of executory devise. It is true that the books abound with decisions on the question, but they are so contradictory that it is exceedingly difficult to come to a satisfactory conclusion in many instances as to what the law is; and even when we feel compelled to declare that particular words will not create a good executory' devise, we often feel satisfied that the intention of the testator is violated by such construction. For instance, if a' devise be to A., and should he die without is
By the 4th clause of the will, there can be' no' doubt but that Mary Ann would have taken an estate tail at common law, had the subject matter of the will been realty. The 6th clause of the' will creates the remainder over, and raises the question whether the testator intended the limitation over to take effect in favor of the brothers and sister of Mary Ann, should she die without issue living at her death. If we can say consistently with the decisions that such was his intention, then we must sustain the limitation over. The language of this clause is as follows: “It is hereby more fully declared to be my intention, that the negroes willed and devised to my said daughters is for their support and maintenance, and for the support and maintenance
These authorities are ample to show that where a limitation over after a dying without issue is created by the word survivor
Plaving attained this conclusion, we think it very clear that the executor has the legal right to take possession of the slave sued for, whenever he may think it his duty under the will to do it, for the purpose of protecting the interest of those who may be eventually entitled on the death of Mary Ann. This right is expressly given by the will, and there is no principle of law that will authorise us to prohibit him from exercising it. He is therefore entitled to recover the slave, not only as against Mary Ann, but also as against her assignee. It becomes then an immaterial question, s'o far as the result of this suit is concerned,' whether the will creates a separate estate in her favor in the slaves or not, for the right of the executor to take possession of the slaves bequeathed to her and to hire them o'ut for the benefit of those entitled is paramount to her right of possession, and of course is equally so' against any one who may claim through her.
Let the judgment of the Circuit Court be affirmed.'