Cuthbert v. Wolfe

PARSONS, J. It is agreed by the counsel, that the negro .Jerry is to bo considered as included in the instruments presently to be mentioned, ho having been omitted in making out the transcript by mistake. A. F. Edwards, by a deed dated June 27th, 1838, conveyed Jerry and other slaves to Cuthbert in trust for said Edwards und his wife, during their natural lives; and after the death of either, in trust for the survivor, during his or her natural life 5 and afterwards in trust for John EL Lucas, the son of Mrs. Edwards by a former marriage, during his natural life; and after-wards in trust for his next of kin, with some further provisions ■which arc not now material. The next instrument is a paper dated March 27th, 1839, written on the back of the deed, of the 27th June, 1838, and signed by A. F. Edwards, by which he relinquished all his right, ¡title and interest in the negroes mentioned in the deed to Lucas, And the next and last is an assignment by Lucas, of date 20th January, 1843, which was also written on the back of the deed, by which he assigned and released to Cuthbert, the trustee in the-deed, “to and for the only uso and benefit” of-Mrs. Ed [377] "wards, all his right, title and interest in and to all the property specified in the deed. The Circuit Court charged that this assignment did not create-a separate estate to Mrs. Edwards, but that it made the property liable for her husband’s debts. This charge is assigned as error. The question is, does it clearly appear that the intention was to create a separate estate, freo from the husband’s control ? It results from the cases generally, that no particular language or form is necessary in an instrument, wnether it bo a will or a deed, to create a separate estate to a minded woman, though it must clearly appear to liare been the intention of the testator or donor to do so. Mrs-. Edwards was at the time of the assignment a married woman: the assignment convoyed the property to had for her only use and benefit. The language wcfold not have excluded the husband more effectually, 'if it had been “ to her sole use and benefit.” If the latter had been the language, the husband would have been excluded according'to various authorities.—Ayer v. Ayer, 16 Pick. 327; Anderson v. Brooks, 11 Ala. R. 953, and other eases cited by the counsel of the plaintiff in error. Bat the two latter instruments were written -on the'deed, and had express reference to it, which authorizes us to look to it as a means of construing the assignment-.—Rives, Adm’r. v. Toulman, decided at last term.—Walker v. Driver, 7 Ala. R. 679. _ By the deed, Edwards conveyed the property to the trustee upon several successive trusts: first in trust for himself'and wife daring their joint lives, afterwards in trust for the survivor during bis or her life, and afterwards in 'trust for Lucas, during his life, and then in -trust for his next of kin. Edwards after 'this conveyed his entire interest in the'trust property to Lucas, •®nd the latter afterwards conveyed his entire interest, as well what Edwards conveyed to him as wh&t he otherwise hold in the trust property, to the trustee, “ to and for the only use and benefit” of Mrs. Edwards. 'Looking at the three instruments r*s one, or considering them as separate and distinct, it is equably clear that Edward? has no interest in the -property* What fee had be eonveyed.to Lucas', aftd then Lucas conveyed it back to the trustee, to and for the only use and benefit of Mrs'. Ed’wards. Considering all the instruments, we cannot doubt but that it Was the intention 'of Lucas to exclude Edwards'. There is no question of fraud before us-. The judgment is révehsed, and the cause remanded.