Case on Property in Trust and Rights After Divorce

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The case, if I understand it aright, is this; -

A father, (Whom we will call F), desirous to provide for his marrd daughter (L), the wife of say H, contracted in Conjunction with H, to buy a tract of land for her, for the price of $7000, of which F paid $6000, & H executed his bond for $1000, which however has never been paid. Thereupon the Vendor, without objection from H, conveyed the land to F, who by his will afterwards devised {the} it to Trustees in fee simple, in trust for his daughter L, directing that they shd sent it"

"to such persons, and for such crops as they may deem not to secure to my daughter L, and her family, food, clothing, & all the comforts of life, suitable to their condition & circumstances in life;" {and further providing}

and further providing, that

"after paying the current expenses incident to said trust—estate, and the support & maintenance of my daughter L, and her family, the balance to be turned over and delivered to said daughter L, at the end of each and every year, and his receipt therefor to be a good discharge for said trustees."

The will further provides as follows:

"It is my will, & I to direct, that any other money or property to wh my sd daughter L may be entitled in the distribution of my estate (after death), be delivered to said trustees to be by them invested in some safe property, stocks, or bonds, or loaned on good & sufficient security as they may deem [but?], & the income arising therefrom to be appropriated as is herein provided for the income of the plantation.

"In case of the death of my said daughter L, without child or children, or their descendants surviving her, that all money and property other than the land aforesaid, which she may have received from my estate, shall revert to my executors to be by them distributed amongst her brothers and sisters, and next of kin, ascending to the provision of this my will."

Those in one child of the marriage, a boy of 8 years old, who was born before the making of F's will.

Last edit over 3 years ago by Jannyp
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[10] the wife in this case taking a separate estate.

On the other hand, Jasper v Howard, 12 Ala 652: Jenkins v [C??], 26 Ala 213; Ozley v Thelheimer 26 Ma 332: Newman v James, 12 Ala 29: Petty v Booth, 19 Ale 633; Gessey v Strong, 19 Ala 146; Brown v Johnson 17 Ala 232: Gould v Hill, 18 Ala 84: Cuthbert v Wolfe, 19 Ala 373: Clark v Windham, 12 Ala 798, 800, tend rather more though {to} in favor of regarding the wife as taking [here?] a separate estate.

With my imperfect knowledge of these cases, I cannot see how the estate here can fail to be held a separate estate in [?], without positively overlooking Jasper v Howard, and Clark v Windham, although I must allow some of the cases on the other side as scarecely less difficult to reconcile with the idea of a separate estate.

In the abstract, & upon a general survey of the author Eug. & American, I think that the two provisions that the trustees are to apply the annual proceeds of the property to the maintenance of the wife then family, and to pay the balance yearly to L, for which her receipt shall be a good discharge, an eenough to determine the characters of the property as L' Separate estate. 2 Brights Hshhip 210 Hy; Darley v Darley, 3 Athe. 3qo; Lec v Prieaux, 3 Bro. C. C. 382; {Cope v Cope 2 Go. & Coll. 543} Hulme v Tenant, 1 Wh, & T.L.C 376-'7 & consisted: 2 Str. Eq. & 1382.

If it could be supposed that the property was not for L's Separate use, then I apprehend that the [?], as to the land wd be entitled, not withstanding the divorce to be tenant by the courtesy , if he [remind?] the wife, {and meanwhile to enjoy it in her right, that is the profits of it, as} {annually wd by them the trustees}, and as to the the chattel-property, that he would be entitled to the wife's life estate therein absolutely. This of course supposes] that the Court makes no special order touching the property of these parties. A divorce, even a vinculo, if granted for a cause supervising after the marrd, determines the marital relation only from the time of the sentence, and cannot therefore per se desist there marital rights which have already visited, such as the husband's

Last edit over 3 years ago by Jannyp
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{right} claim to his info's Chattels in possession, and his title by the courtesy. The English author' which seem adverse to this last propositions are not applicable. (2 Bl. Cem. 130; 1 Th-Co-Lit Bog_, because they refer exclusively to cases where the marre is annulled ab initio, for a cause [sub?] when it was contracted, there being at Com. Law no [?] cause whatsoever for [who?] a marre might be dissolved. [1 Bl?]. [C?]. 441: [b?]. [Alr?]. Marrege (p). 3/

But I do not deem it necessary to elaborate this point, deeming it to be practically certain that L's estate is to deemed separate one.

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[?] since the purchase of the land, has expended considerable sum of his own money, in 'improvement' thereon, & has in conjunction with his wife & child, been supported from the [?].

L has filed a bill for divorce a [?], on the ground of [?], which {?} [?] admits, [?] in the payer for a divorce; demanding however, the [custardy?] of the child, and a [proportionate?] allowance out of the [h?]-fund for his support. & also files a cross-hill [investing?] upon being [re-imbursed?] for his expenditures for 'improvements' upon the estate.

The questions [prop?] are substantially, these; 1. If [?] entitled to a support, out of the [?]_estate, (as one of L's family), 2. If L obtains a divorce, is be entitled to anything out of the [?]_estate by [?] of any marital right? 3. If L obtains a divorce, is be entitled to be re-imbursed out of the [trust?]. estate, for his expenditures in the way of 'improvements' thereon?4. So, can he properly demand that an allowance shall be made for the child's support out of the [?] estate? 5. Supporting an allowance [proper?] to be made for the child, how & to what extend [?] it to be made? And to these, may properly be added the following:

(1). Whether the case is altered, or H's rights [?] affected, by the fact that the purchase of the land was [?] made by F & [?] [formally?]?

(2). Whether by the law of Alabama, (where the case [?]), {the} L is clothed with a separate estate; and if not, how [F's?] marital rights are [?] {p?} affected?

Of these questions in order:

Last edit over 6 years ago by Lily Ha
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was supposed to require [such?] a [const?] in Mac Laroth v Baron. 5 Ves. 168, but [?] [?] of the [Roch?] ([?] R [P?] [A?]) {[?] not fail to} said [with?] emphasis Say that it was an unusual [justification?] of the [?] enforced only by

the [?] of the phraseology. In [Barnes?] v [P?]. 8, 607, Sir Walgrant[?] (M.R) heated the word 'family' as clearly embracing children alone, unless otherwise determined by the context. The same great judge maker, held in Grewys v Coleman, 9 Ves, 323-4 that the word was me[?] of different [?][?], according to the context, but^seems to^ consider that if [?] not naturally comprehend a husband, as Ld Heranley had held in Mac[?] Leroth vs Baern[?] 5 Ves. 168. In Blackwell vs Bull, Keen 181, Ld Langdale (MR) regarded the term of [?] impact of lg force of the content, applied if to include a wife. To the same effect in Woods v Woods 1Mg. & Gr. 407 (Ld tottenham C). In Brandne v Brandon & Luroast [?]. 321 Sir M. Plummer (MR), regard the word as reduced to the practice al[?] meaning (standing alone) of extending the [?] days. see also ^Wright v [?] 17 Va 261; S.C. 19 Va. 300 [??]

I perceive no circumstances or enjunction tending to change the natural, or [?], general meaning of the word family? But on the contrary, it would rather seem that F did not de-sign to provide for any but his own descendants.

2. If to obtain a divorce, is it entitled to anything, or out of the trust-estate, by virtue of any [merited?] right?

I take it to be clear that he is not, if supposed to have a separate estate. Whom that hypothesis, H had no interest in the property, during the coventure[?], not even (as I think), to the extent of a support whilst the [?] with his wife. If the coventure should continue to subsist, the H, who (whom the supposition of her having a separate estate) is as I apprehend entitled in [fee?] - simple to the trust in the land, but (under your statute abolishing the Rule in Shelley's Case) only to a life estate in estate, the personal fact, fund; and (whom the supposition of her having a separate estate)...your Alabama Statute of [Devises?] is like [?], may devise the

Last edit almost 5 years ago by pmr443
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