Dunn v. Bank of Mobile

COLLIER, C. J. — First: Neither the paper, which has been designated as a deed of gift, nor the will of Mrs. Sims, invest her daughter, with.a separate estate for life, or any other period in th.e property conveyed by them. In Lamb v. Wragg & Stewart, 8 Porter’s Rep. 73. it was held,‘that where property is given or bequeathed to a married-woman, without any qualification of the manner in which it is to'be possessed or enjoy- • ed, it will vest subject-do the ordinary legal and marital rights of the husband. But,'if there’be,a fairly and -clearly, expressed intention of the donor, that the wife Shall have an estate therein to her own separate .-use and disposal, such-intention .-.shall take effect. In the case before¡us,:the terms in which the property is given, are general .and unqualified, to Mrs. Bunn and her children, so tbat.it cannot be pretended that the former was .enti-' tied to a separate .estate for life in all, or any'part.off the property given. The interpretation-of the deed andvwill,-cannot in-general, be controlled by the acts of the parties claiming ¡undor them ; hut, for the purpose of ascertaining their meaning,-we.must look.to the terms,employed — these being clear, and not requiring extrinsic aid, ;parol evidence of iutentiou is inadmissible. The acquiescence of the children -of Mrs. Dunn, in her claim to.-a separate estate for life, cannot .therefore, invest-her-.with such .an interest. Second : The deed was onlyto become operativempon "the -.death of Mrs. Sims, unless she should elect during life, to part with the possession of the property it. disposes of. If an instru;ment b.e in the form of a d&ed of gift, and called such, still,if its purpose be testamentary- — if it is.only to be consummated .by death, and not-to operate during life, probate .will.be granted of it as a will. [Lovelass on Wills, 317, 25 Vol. L Lib; Henry v. Ballard, 2 Caro. L Rep 595; Lyles v. Lyles, 2 Nott [156] & McC. Rep. 531; Milledge v. Lamar, 4 Dess. Rep. 617; Druce v. Dennison, 6 Ves, Jr. Rep. 385. If necessary then to effectuate the -intention of the donor, the deed may be regarded as a testamentary paper, and operate as such. Regarding it as a will, the gift to the children of Mrs. Dunn, to be bom after its execution, may take effect as an executory devise. [2 Bla. Com. 173; Lovelass on Wills, 325; (3 Vol. L. Lib.) Smith v. Attersoll, 1 Russell’s Rep. 266 ; Claffin v. Perry, 12 Mass. Rep. 425; Nasar v. Smith, 3 Dess. Rep. 550; Pratts Lessee v. Flamer, et al. 5 Har. & John’s Rep. 10; Wilkinson v. Adam, 1 Ves. & B. Rep, 422; Doe, ex dem. Clarke v. Clarke, 2 H. Bla. Rep. 399. The deed does not give to Mrs, Dunn, an estate for life, in the land and slaves described in if, to the exclusion of her children during that period. The donor declares the intention, that Mrs. D. and her children then in life, (who are designated by name) and those thereafter to be born, shall enjoy her bounty, immediately after her death. As a joint-tenancy and its consequences have been abolished in this State, all who are provided for by the deed, are made tenants in common; those in life obtaining an interest in prsesenii, immediately upon the-donor’s death, and the children born after that event, becoming upon their birth, entitled to an equal share with their mother, and elder brothers and sisters. Third; The bill does not deny, that such a possession has vested in the husband, in the property given and bequeathed by Mrs. Sims, as would cause his marital rights to attach; and we cannot intend anything beyond the allegations of the bill. If the husband’s rights, in virtue of his marriage, did vest in possession, the levy was regular; and, be this as it may, the reverse is not alledged to be true. [Williams & Battle v. Jones, at this term.] Though the levy may be regular, yet the children of Mrs. Dunn, might arrest by injunction proceedings thereon, until partition shall be made, and may require security to insure contribution from their mother’s share, so as to provide shares for after born children. Williams & Battle v. Jones—supra. So, if the marital rights of the husband had not attached, we will not say, that it was not allowable for the wife to obtain [157] an injunction, and through the medium of a Court of Equity, a settlement out of the property given and bequeathed to herself and children. [Atherley on Marriage Sett. 350.] Fourth: The ground upon which an injunction was obtained against levying an execution in another case, against the property now in controversy, is not stated in the bill; and we cannot know, but it had reference to the judgment or process itself, rather than the condition of the slaves. If so, there can be no pretence for holding that the pendency of that injunction, forms, in the present case, a substantive cause for equitable interference. Fifth: By the first section of the act of 1826, “to provide a speedy remedy against the obligors in injunction bonds,” it is enacted that “ every bond executed for the purpose of obtaining an injunction, shall, on the dissolution of the said injunction, have the force and effeet of a judgment; and it shall be lawful for the party or parties, whose judgment may have been injoined, to take out execution against all the obligors in the bond, for the amount of the judgment which shall have been injoined, together with lawful interest thereon, and also the costs incurred in and about the said chancery proceedings.” Though the first clause declares, that ‘every bond’ &c, shall have the force and effect of a judgment,” yet the succeeding words clearly limit it to cases, in which the “judgment” shall “have been injoined.” In thecase before us, the judgment remained in full force, and the .execution itself was only suspended, as against the property levied on. The bond then, did not operate as a judgment, and the decree of the chancellor, declaring that such should be its effects, is consequently erroneous, and must be reversed. And as the rights of the children of John Dunn and wife, cannot be definitively settled upon the bill in the present case, the bill is dismissed, without prejudice to the children. The cost of this Court are to be paid by the defendants in error, and the costs in the Court of Chancery, are to be paid by the plaintiffs.