Collins v. Lavenberg & Co.

CHILTON, J. The case of Bradford v. Greenway et al., 77 Ala. 797, is in point to show that the separate estate of Mrs. Collins is bound for the payment of this note. But it is very clear, that the case made by the pleadings does not warrant the relief which was granted by the chancellor. The bill was filed at a time when the corpus of the trust, according to the provisions of the deed, could not have been sold in satisfaction of the demand, but the wife’s share in the profits might well have been separated. Since that time, however, the grantor has died, and the deed provides that upon his death the property shall vest absolutely in Mrs. Collins and the children, discharged of the [686] trust, share and share alike to each. It was erroneous, therefore, to hire the property out to raise a fund, since this violated the rights of the children, but the change in the character of the estate should have been averred by way of supplemental bill, and a separation of the interest-of Mrs. Collins by partition should have been made, so that her share of the property might have -been hired-out, or sold, as the case may require, for the satisfaction of the plaintiffs’ demand. The death of Wiley Collins, and the consequent change in the nature of the estate, is stated by way -of -amendment, instead of supplement, and the bill is demurred to for this cause. The demurrer was well taken, and should have been sustained.- — Story’s Eq. Pl., § 646; Walker v. Hallett, 1 Ala. 397; Bowie v. Minter et al., 2 Ala. 406; Hill v. Hill, 10 ib. 527; Cunningham v. Rodgers, 14 ib. 147. We think, however, the court should not, had it sustained the demurrer, have dismissed the whole bill, as the demurrer goes to the last amendment -filed. Consequently, we do not feel authorized to dismiss the bill in this court-; but order the decree to stand reversed and remand the cause, that the plaintiff may apply for leave to file a supplemental bill, -properly presenting this new matter, which has arisen since the original bill -was filed. Decree accordingly.