Parish's Adm'r v. Balkum

JUDGE, J. The slave sued for in this case was settled by a decree of the court of chancery, upon a trustee, “for the sole and separate use and support” of Annis Ward, who was at the time the wife of William Ward; and “for the support and maintenance of her family.” The bill was filed, [288] and the decree rendered, under the provisions of “An act to protect the rights of married women,” approved the 14th of February, 1846. — Acts, 1845-6, p. 23. A married woman, for whose use' property has been settled under the provisions of this act, has the right, by the terms of the act, “to dispose of any such property, real or personal, by will; and in case of her death without having made such disposition, the same shall be divided and distributed as in other cases of intestacy.” After the decree of the court of chancery was rendered, the husband of Annis "Ward died, and she intermarried with Boger Parish, the original plaintiff in this suit, who, after his marriage, and prior to the commencement of the suit, had the slave for some time in his possession. It is contended that, on the death of the first husband of Annis, the trust terminated, and that the legal and equitable estate then became united in her. If this proposition be correct, then, on the intermarriage of Annis with Boger Parish, in January, 1860, the property became her separate estate, under section 1982 of the Code; and in that event, the suit should have been instituted in the name of the wife alone, under section 2131 of the Code, as construed in Pickens and Wife v. Oliver, 29 Ala. 528. It is only where no trustee has been appointed for a married woman, in a settlement of property to her sole and separate use, otherwise than by statute, that the husband alone has the right of action, after he has reduced the property to possession. — Gerald and Wife v. McKenzie, 27 Ala. 166; Friend v. Oliver, 27 Ala. 532; Pickens and Wife v. Oliver, supra. But, under the provisions of the act of February, 1846, the trust did not terminate on the death of the first husband of Annis. It is clear, we think, that the act contemplates a continuance of the trust, in all cases of a settlement of property under its provisions, during the life of the wife. That this is the proper construction, is made manifest by the power of disposition given to the wife by will; and in case of her death, without having made such disposition, by providing how the property shall be disposed of. Until the event last named occurs, the purposes of the trust are not accomplished. Were we to hold otherwise, we [289] would add a new limitation, not contemplated by the act, restricting the trust to the period of coverture; and this we have no authority to do.— Witter v. Dudley, 36 Ala. 135, and authorities there cited. If, then, the slave sued for was wrongfully detained, who was the proper person to institute the suit? We think there can be no doubt that Silas Nordon, the trustee, was the proper person. The decree vested the legal title in him, and it was not necessary, as is supposed, that he should have given bond before this part of the decree become operative ; the decree made no such requirement. At the time of the commencement of the suit, we are not informed that the trustee had either resigned or been removed; and the objects of the trust not having been at an end, the legal title remained in him, and he alone could have instituted the action. - Rice v. Burnet, 1 Spear’s Eq. 590: Schley v. Lyon, 6 Georgia, 530; Harley v. Platts, 6 Rich. L. 315; Hill on Trustees, 236. Our decision upon this question disposes of the entire case, and renders it unnecessary to notice the other questions presented by the record, and argued by counsel. Let the judgment be affirmed.