Gamble v. Dabney

Roberts, J. So far as this case involves the right of a creditor of the husband, who was one of the defendants in the judgment, the ‘ question is fully settled in favor of appellees, by the cases of Parks v. Willard, (1 Tex. R. 350,) Edrington v. Mayfield, (5 Id. 363;) and by the case of The Bank of the U. S. v. Lee et al. (13 Peters, R. 107,) even had the property levied on been in the county of Bastrop three years without the deed of trust being recorded. If the wife, Mrs. Dabney, had held an absolute, separate interest in the property, fully vested in her by the deed, it would not, under' the circumstances, be liable for the debts of her husband. The judgment in favor of appellant being against both husband and wife, the question arises whether or not this property may be subject to be levied on by this execution in satisfaction of her debt. The deed conveys the legal interest to the trustees, with a power of disposition as to all the property except the slaves and their increase. It gives Mrs. Dabney a usufructuary interest, jointly with her children, during her life, separate and apart from the power of her husband; and at her death it vests the remainder of the property in her children then living. From the nature' of the gift her interest is varying and indeterminate, according to the exigencies of her own condition and that of her children. It was obviously the intention of the donor to restrict the slaves from alienation, until they should vest absolutely in the children. Under such a deed her interest in the slaves is not only secured against the debts of the husband, but also against the levy of this execution to satisfy her own and her husband’s debt. Because the deed expressly stipulates that her interest is to be enjoyed by her, and shall not be liable to pay the debts of the husband. (Hill on Trustees, 611.) Because the deed expressly provides that the trustees shall sell any of the trust property except the slaves, which raises a conclusive implication, taken in connection with the other provisions, that the slaves should not be sold during the existence of the trust. (Hill on Trustees, 614; Benton v. Pope et als. 5 Humph. 392.) [77] Again: if her interest in the use of the property were sold, so uncertain and indeterminable is its character, that the objects of the trust would be greatly interfered with if not defeated. It may be that appellant might have been able to show himself to have been entitled to an equitable remedy for the purpose of subjecting the surplus proceeds of the property, if any, to the satisfaction of his debt. But he cannot do so by a sale under his execution, as attempted in this case. (1 Devereux’s Eq. R. 541, Harrison v. Battle Hunt et als.) The only remaining point is, the appointment of a trustee made by the Court below. A Court of Equity will not permit a trust to be defeated for want of a trustee to execute it; and if the original trustees refuse, decline, or neglect to act, it will, as it has the power to do, appoint new trustees. (King v. Donnelly, 5 Paige, 46; Hill on Trustees, 274.) We are of opinion the Court below decided correctly upon the facts presented in the case, and therefore the judgment is affirmed. Judgment affirmed.