Fellows, Wadsworth & Co. v. Tann, &c.

examination of the witnesses by.both parties seem rather to treat this as a conceded point, by the failure to call the attention of the witness to it by a direct inquiry. But suppose that Mrs. Tann was herself the proprietor of Winney, if she assented to hold under the deed, accepted it from her father's hands, and it has been ever since acknowledged by herself and husband, will it not now be supported in the absence of an intention to defraud? Or is not the acceptance of the deed equivalent to proof of the donor's right, and will it not estop the husband, who never objected to it, or his creditors from setting up rights in opposition to it? In the one view or the other, the evidence is quite sufficient.

There can be no inference prejudicial to the wife or her children, from the failure of the donor to interpose a trustee. Formerly considerable doubt existed, whether a gift to the separate use of a married woman could be maintained against the legal rights of her husband, without vesting the estate in a trustee for her use. But it may now be regarded as settled law, that such a gift vests an interest in her in equity, and a Court of Chancery will decree the husband to stand as a trustee, for his wife, or direct one to be interposed. [Clancy's Husb. & Wife, 256, 261.] In the present case, Mrs Tann was a feme sole when the deed was executed, and of course competent to hold property under a gift or conveyance made to herself directly. This being the case a subsequent marriage could not affect her rights in a court of equity.

The words heirs of the body," it has been held, create an estate tail, unless they are restricted by some expression indicative of an intention that the first estate shall cease on the first taker's dying without issue at the time of his death. And when applied to gifts or bequests of personal estate, vest the entire property in the first donee. [Darden's Adm'r et al. v. Burn's Adm'r and another, 6 Ala. Rep. 362.] The obvious interpretation of the deed we are called on to consider, is a gift to the donor's daughter and her children; but the subject of the gift is placed under the control of the mother, who was authorized to employ Winney and her increase "in the most profitable and useful way for the use and support" of herself and her children. The intention of the donor is very clearly indicated. It was to provide for the maintenance of the donee then in life, and such children as she had, or might give birth to. Those born at the time the gift was made,

Fellows, Wadsworth & Co. v. Tann, &c.

if any, were entitled to a proportionate share for maintenance, and those afterwards born, would, as they came into being, be let into an equal participation in the profits.

The children, during the life of their mother, were not entitled to the possession of the slaves in question, nor had they any spe cific property in them; their interest extended only to a support from the profits derived from their employment. This is shown by the direction that "Winney shall be under the entire control and management of the mother during her life; and after her death the property in the slave, and her increase, shall vest in the children." Here we perceive the donor has provided for the maintenance of his daughter and grand-children, by vesting certain property in the former, and devoting the income to that object. This provision invests the mother and her children collectively with interests which the creditors of the husband cannot divest, as it respects the latter, through the medium of any forum, or as it regards the former, certainly not by levy and sale under execution.

In Spear v. Walkley, at this term, a testatrix bequeathed by her will to A. S. certain slaves, "to be held and worked by him for the use of his wife and children, but subject in no way to his debts, contracts or judgments, and at his death to be equally divided among his children," &c. Held, that A. S. had no such interest in the slaves themselves, as is the subject of levy and sale under execution; that the title was vested in him to work for the use of his wife and children, and if they could be taken from his possession by a creditor, the trust, instead of being carried out, would be defeated in toto. "On the other hand, if the profits of these slaves, when worked, constitute a fund when divided between the wife and children, then the wife's share of what devolves upon the husband, can only be separated and ascertained by a court of equity." This decision is directly in point, and shows that the slaves in question cannot be sold under execution, to pay the debts of the husband of Mrs. Tann, without defeating the income from labor which the donor looked to, for the maintenance of the objects of his bounty.

Whether the wife has a separate estate under the deed for her own benefit, we need not inquire; for be this as it may, it is a clear result from the case last cited, that her husband has not such an estate in the subject of the gift as could be seized under pro

Fellows, Wadsworth & Co. v. Tann, &c.

cess issuing upon a judgment against him. If, in virtue of his marital rights, he is entitled to a share of the accruing profits, a question upon which we forbear even to intimate an opinion, his creditor who would seek its appropriation, must resort to a court of equity, that he may have the interests of the debtor separated from those of the children.

The object of the bill in the case at bar, is to secure the property that it may be made subservient to the purposes of the deed; and in this view, if no other, it is clearly defensible. It is proper as the mother is a feme covert, that equity should designate a trustee, who shall become a depository of the legal estate. This has been directed by the Chancellor. As then, the levy was unauthorized, and could only be arrested in equity, the decree perpetuating the injunction is correct, and is consequently affirmed.

INDEX.

ABATEMENT-

1. In pleas of abatement to the constitution of the grand jury, the greatest
accuracy and precision are necessary, as two modes are provided, by
which a jury may be constituted, and therefore the plea must negative
that either mode was pursued. The State v. Brooks,
10
2. In all pleas in abatement of indictments, it is essential that the facts
should be stated out of which the defence arises, or a negative of the facts,
which are presumed from the existence of a record. Ib.

10
3. After an appeal from a justice, no plea in abatement can be interposed to
disclose a defect in the affidavit for the attachment, which was the process
in the suit. This is a defect in the proceedings of the justice, and cured
by the statute. Clough v. Johnson,
425
4. It is irregular to join two distinct matters of abatement in the same plea,
and a demurrer will be sustained for that cause. Cobb v. Miller, Ripley
& Co.

499

5. A demurrer to a plea in abatement does not reach the question, whether
it was filed at the time prescribed by the rule, or the statute. Ib.
499
6. A pending attachment for the same debt, cannot be pleaded in abatement
of the writ, but to suspend further proceedings in the cause for the pre-
sent. The prayer of the plea is, not that the writ be quashed, but “whether
the court will compel further answer." Crawford v. Slade, adm'r,
See Freehold and Freeholders, 1.

See Pleading, 12.

See Practice at Law, 4.

ACCOUNT.

887

1. A witnesses certificate is not an open account, so as to be barred by the
statute of limitations of three years. Carville, &c. v. Reynolds,

See Witness, 3, 4, 5.

969

ACTION.

1. An owner of slaves may be sued for the default of his slaves in not working
on the road, in the county in which his slaves reside, though he is a resi-
dent freeholder of another county. Barney v. Bush,
345
2. Such suit may be brought in the name of the overseer of the road. Ib.345
3. A purchaser of a lot at a mortgage sale, where the lot had previously been
sold under execution against the mortgagor, and the possession delivered
by the sheriff to such purchaser, cannot transfer his title, so as to authorize
his alienee to sue in his own name. Pryor & Fisher v. Butler,
See Attachment, 7.

See Contract, 8, 12.

AMENDMENT.

418

1. Where the names of the parties to the suit are not fully stated upon the
margin of the judgment entry, the defect is amendable by a reference to
the papers in the cause, and may be considered as amended, although the
amendment is not, in point of fact made; and for the purpose of informing
the court that the judgment was intended to apply to the particular cause,
extrinsic evidence is admissible. Smith v. Redus and Wife.
99

2. After judgment, all defects of form, not previously objected to, are cured
by the statute of jeofails. Turner, et al. v. Brown, et al.

See Demurrer, 2.

See Executors and Administrators, 10, 11.

See Judgment and Decree, 2-

See Practice at Law, 1.

APPEALS AND CERTIORARI.

866

1. Upon an appeal, or certiorari, from a justice's court, there can be no
change of the parties; they must be the same as in the inferior court. Wil-
son v. Collins, use, &c.

127
2. A confession of judgment before a justice of the peace, is a release of er-
rors, after which it cannot be carried to an appellate court, either by appeal
or certiorari. If the confession was by mistake, or procured by fraud, it
seems a Court of Chancery would afford relief. Ib.
127
3. The sureties in a bond for a certiorari are only liable to the extent of its
penalty, and if the judgment be rendered against them for a larger sum,
the judgment will be amended on motion in the court below, or in an ap-
pellate court, at the costs of the plaintiff in error. McKeen aud Wife v.
Nelms,

See Abatement, 3.

507

See Contract, 12.

See Jurisdiction, 2.

See Set Off, 6.