Walton v. Olive

Per CtjRIAM. Upon consideration of this case, we are of opinion that James Olive took a present fixed interest in the slaves conveyed to the trustees for the use and benefit of Mrs. Olive, to take effect upon her death, and that his interest was a vested one in prcesenti, though only to take effect in possession in futuro, upon her death; that this interest became fixed before the passage of the acts of 1839 and 1846, in relation to the rights of married women, in virtue of his marriage, and of her possession and enjoyment of the slaves in the State of Georgia and in this State before the passage of those acts, and that those acts cannot affect or divest that interest. Consequently, James Olive, the husband, was entitled, by virtue of His marital rights, to these specific slaves, and their natural increase, held by his wife under the deed of trust, upon the death of his wife. Lyon v. Knott, 26 Miss. 548-562; Kimball v. Kimball, 1 How. 533; Lowry v. Huston, 3 Ib. 394; Stewart v. Stewart, 7 Johns. Ch. R. 229. And as to these slaves, the decree of the court below dismissing the bill is correct. But the slaves acquired by Mrs. Olive, or to her use, since the passage of the act of 1846, are in a different condition, and are subject to the rule of distribution established by that act. The evidence tends to show that three of the slaves in controversy were purchased by Mrs. Olive, or to her use, with means derived from the labor of the slaves held to her separate use under the original trust. Under such circumstances, the slaves [291] so acquired would be subject to the provisions of the 6th section of the act of 1846, and should be distributed to the children of Mrs. Olive by her former husband. On this ground, the decree of the probate court is reversed, and the cause remanded to be proceeded with according to this view.