Case on Property in Trust and Rights After Divorce

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lands to whom she will. If she should leave no will, the lands would pass to her next heir. {But} And if L obtains a divorce dissolving the marriage of course H's marital pretensions would not be advanced thereby. In short in no event (upon the supposition stated), can H claim any interest in or benefit from the trust_estate, except in so far as he may enjoy it by L's acquiescence.

But the lawsof Alabama like them of Virginia, probably submit in casesof divorce the [dispertion?] of the property of the parties to the discreton of the Court; which however it is presumed, wd never in a Case like this, be exercised in favor of the husband, unless possibly where the [?] was helpless & needy, & the wife's estate was {?] more than enough for the support of herself & child.

3. If L obtains a divorce, is H entitled to be re-imbursed out of the trust_estate, for his expenditures in the way of 'improvements' thereon.

I assume that the 'improvements' contemplated are of a permanent character, and even upon that supposition I am of opinion that H is entitled to no allowance therefor.

When one person makes improvements upon another lands, he has no right to expect to be indemnified therefor, [?] under one or other of the following circumstances:

1st where a [passed?] has been {perpretated?} practised upon him by the [owner?] of the property;- as if {the true owner} he stands by and suffers the improvements to be made, without giving notice of his title. [illegible] 1237 Green v Biddle, 8 Wheat. 1.77.78 [Cawdor?] & [Lewis? 1 [illegible] & Coll. 427. Pilling v Armitage, 12 Ver.84,85: Wells v [Barrister?] 4 Mas. 574.

2d Where the true owner seeks the aid of a Court of Equity to euforce his title. In such a case, upon the principle that he who asks equity, must do equity, the applicant must submit to pay for the melioration & improvements in good faith made by the occupant, so far as the same are beneficial to the real owner. This would happen where an equitable claimant files his bill to assert his right; and also where one of several joint owners having been in exclusive possession, a bill is filed by his [co-tenant?], for a partition, & an account of {p.a.?} rentss & profits. He cannot in the one case, recover the land by virtue of his equitable title, nor in the other, have the rents & profits decreed him, without paying for the beneficial improvements made by the occupant. 2 [illegible] S. 1237, 79a, 799b, Swan v Swan, [illegible], [578?], Green v Biddle, 8 Wheat.[illegible] Putnam

4. If L obtains a divorce, is H entitles to the custody of the child; and if so, can he properly demand that an allowance shall be made for the child's support, out of the trust-estate.

He is entitled {(subject to the [contrast?] of the [count?]} [p?] to the child's custody;- subject however, to the [?] and order of the [c?], and to be {learned?} [deprived?] of if in case {the} he should appear to be {?} a [p?] improper person for such a [?]. And the father's [?] to the custody is especially to be [maintenanced?] (in the [?] of any [?] objection to his [ch?] or conduct), in case of a [son?], [old?] enough to dispense with a [another?]; some

6 Control his judgement; "but he certainly cd not allow the child to be [?] friend to the views of the father'.

In [?] v Cleaver, of 2 Bro. C.C., 501, 510, the father was not permitted to interfere with the education of his son, to whom a maintenance & a con- siderable portion had had been bequeathed, on condition that the trustees appointed by the testator shd have the same, guardianship, tuition & manage mnt of him, during his minority.

In Ex-parte Warner, 4 Pro, C.C, 101, a father was restrained from exercising his paternal authority on his children, who were educated at the expense of their relations, & mother not of his own estate, the father being insolvent, and cruel in the treatment of the mother who was living apart.

In Lyons v [Bleakin?] Jac. 255, Ld Eldon (C) held that a father shd be restrained from interfering with the custody of his children to where their gr. mother had left a maintenance in discretion of their aunt, & a considerable estate, the father having a very small compentency (£400 a year), & having for many years left his children to their Aunt's control.

In Colston v Morris, Jacob 257, n(a), a father was restrained from interfering with his child's management & control, in consequence of a [portion?] of £ [pounds] 10,000 being left her, on condition that father shd leave her to the control of the trustees.

In Jackson v. Hankey, Jac. 264, n(a), it was held that where the father & mother find separate, the income of the father was small, the father's control might be divided, in favor of the mother if she could and would make permanent & irrevocable permission for the infant childcare.

In Shelley v Westhrope, Jac, 206, note, it was held that a father's authority on his children might he controlled on the ground of his profession & acting on irreligious & immoral principles. He had deserted his wife, & cohabit with another woman [??] himself an atheist, & published blasphemous work, denying the truth of the Bible & the existence of a God.

In Kiffin v Kiffin, cited in Duke of Beaufort V Berty, 1 P Wms

705, Ld Ch. Macclesfield said the ct wd remove a child from a fathers cuutody, where the child had an estate, & the father who was insolvent, & of an its character would take the profits.

However, is in no doubt competent to the Chancellor by the law which give him jurisdiction on the subject of divorce, to make any order which he may deem proper touching the custody of the Child, whilst it is probable he would feel bound to prove himself in the exercise of his discretion by the principles also stated.

As to the remaining part of the enquiry, whether the father can properly demand, supposing the custody of the child to be awarded to him, that an allowance shall he made out of the trust - estate, for the child's support; - the doctrine seems to be that where a fund is to be enjoyed by several persons jointly, as a husband & family, or wife & family, that none has a right to any separate share, can the creditors of any one subject any portion thereof. In persuance of this doctrine, I apprehend the portion of the child is not separable from the bulk of the trust-fund with out [?] consent. The boy is entitled to a maintenance in his mother's family, but not elsewhere. Scott [?] a Gibbon [?], 5 [?] 90; Roanes v Archer, 4 Liegh 550, 568: Perkins v. Dickinson [?] 3 Grant. 337: Nickell &al v Handley &als, 10 Grat. 336, 340 &c: Crawford's Ex'or v Patterson, 11 Grat, 370: Johnston v Lanes Trustees, 11 Grat, 552, 570: Armstrong's Advr &als v Pitts &als 13 Grat. 241.

5. Supposing an allowance proper to be made to the child, how & to what extent ought it to be made.

The very fact of the difficulty of assigning a share to the child upon any reliable principal is an argument against attempting it, at all. The leading intent is to secure a support to their family. This necessarily requires unequal expenditures for the different members. He will obviously contemplate that the property shall be kept together during [his?] life-time, & its products are charged with the unequal & varying amts

necessary to support the beneficiaries. The products of {the whole} every part are charged with the whole burden, the amt of wh can only be known from time, whilst the trust is in the process of execution. But if, in behalf of one beneficiary, his share may be withdrawn, it must be held that in behalf of another the same thing may be done, and thus a share designed to rest upon the whole property may be devolved upon a part of it. By keeping the whole together, the Whole family may be supported, when it divided the share of each would be inadequate to his or her {support} maintenance. If the testator had intended to give equal benefits to his daughter, & to each child that L might have, nothing was easier than to say so; yet he has not only not said so, but in the contrary has confined benefits which in any event must be unequal [& varying] from time to time; and which in certain contingencies may become greatly unequal. Nickell etal v Handley etal 10 Grab. 341.

Upon the [?] stated however, I presume that the Court would first of all direct a maintenance for L (as the first object of the Testator's [bounty?] to be proved for according to the terms of the {a similar provision} if sufficient income was left, or as far as the [?] wd go, that a simialr provision of food clothing & all the comforts of life, suitable to his condition and circumstance to be made for the boy, by the trustees. It would not be proper to turn on the property or part of it, to H {lest that} nor even to pay him the portion of the income for the purpose above, but the trustees should themselves provide the articles. Nor can anything be allowed, without [L's] consent, for education , or for anything but food, clothing, & corresponding comforts if life etc.

In respect to the supplemental questions above referred to:- - (1) whether the case is altered {by} or H's rights materially or [afr]