
    Isaac D. Taylor vs. Hannah D. Stone.
    There is no set form of words necessary to create a separate estate in the wife ; any terms which show a manifest intention to exclude the right of the hus band, or to show that the wife’s control is independent of the husband’s power, are sufficient for the purpose.
    L., in the year 1835, conveyed, in the state of Alabama where the parties lived, certain slaves to S. and M., “ in trust for the use of five grandchildren of his, children of S. and the daughter of L. ; the said S. and wife to have the possession and use of the said slaves during their natural lives, and after the termination thereof the said slaves are to be equally and rateably divided between said grandchildren, or such of them as may be then living ; the said slaves to be at no time under the disposition of S., except for the maintenance, support, and education of said grandchildren, and to be at no time liable for any of his debts or liabilities.” S. sold one of the slaves in 1836, and after six intermediate and successive purchases, in 1841, the slave thus sold by S. was bought by T. in this state ; in 18 — , S. died, and the slave in some way got into the possession of his widow, whom T. sued for the slave : Held, that, by the deed of 1835, from L. to S. and M., the wife of S. took a separate estate during her life and to her children afterwards, beyond the reach of any act of the husband ; and that therefore the original purchaser from S. and those claiming under him, acquired no right to the slave as against the wife.
    In error from the circuit court of Noxubee county ; Hon. A. B. Dawson, judge.
    The opinion of the court states the facts.
    
      A. W. Dabney, for plaintiff in error.
    1. The statute gives the right to immediate recovery in the plaintiff in error, there being a wrongful taking by the defendant, and she showing no right whatever to detain the slave. Hutch. Code, 817, 818, § 2; Lloyd et al. v. Goodwin, 12 S. & M. 223.
    2. The words, “ the possession and use of said slaves during their natural lives,”- vested in Stone the title to the property during the natural life of both himself and wife. His marital rights attached as to the life estate of his wife, and vested the property in him for that time. Lamb, Trustee, v. Wragg Sf Stewart, 8 Porter’s R. 80; Price v. Price, 5 Ala. R. 578. The deed of gift does not convey a separate estate to Stone’s wife. 2 Story’s Eq. 608, § 1382; Clancy, Husband and Wife, 268.
    In cases where estates have been created for the joint benefit, joint livelihood, or joint use and support of husband and wife, or husband, wife, and children, there can be no partition of the property to the prejudice of the husband’s creditors, or of subsequent bona fide purchasers under him. Harkins v. Coalter, 2 Porter’s R. 478.
    3. The deed of gift gave authority to Stone to sell the property for the maintenance, support, and education of the children.
    The sale by Stone as trustee is good, the other trustee never 'having accepted the trust. King v. Donnelly, 5 Paige, R. 46. The trust, however, is to Stone or Laprade, or either of them. The trustee could have been forced in equity to sell the slaves for the maintenance, support, and education of the children. What a trustee may be compelled to do by a suit, he may vol■untarily do without a suit. 2 Story’s Eq. 242, §'979.
    'What powers may be properly exercised over trust property 'by a trustee, depends upon the nature of the trust, and sometimes upon the character and situation of-the cestui que trust. 2 Story’s Eq. 242, § 978.
    4. The purchase by Taylor and all the vendees from Stone, was bona fide for a valuable consideration, and without notice of the trust. A trustee may even dispose of the estate or property, so as to bar the interests of the cestui que trust; as by a sale to a bona fide purchaser, for a valuable consideration, without notice of the trust. 2 Story’s Eq. 241, § ‘977; 1 Lomax, Digest, 221, 241; Thomas ¿f Howard v. Davis, 6 Ala. R. 123; Taylor v. King, 6 Munford’s R. 366, 367.
    
      Guión and Baine, for defendant in error.
    In this case it was a clear intention to give a separate estate to the wife. The case is much stronger than that of Lucas v. Lockart, 10 S. & M. 466. The intention cannot be mistaken in ■the present case; whereas there was room for doubt in that just cited. See .also Palmer v. Cross, 1 S. & M. 48.
   Mr. Justice Clayton

delivered the opinion of the court.

This was an action of replevin, brought by the plaintiff in error, to recover a negro woman.

The plaintiff claimed title through six intermediate and successive purchasers, from one L. M. Stone, and proved that these purchases were all for valuable consideration. The .first of these was in 1836, the last in 1841. Stone, who is now dead, was the husband of the defendant.

The defendant.claims under a deed of gift,-from her father, J. Loftin, executed in Alabama, in the year 1835, by which he conveyed the slave in controversy, together with others, to said L. M. Stone and Andrew Laprade, or either of them, “ in trust for the use of five grandchildren, whom he names, the children of said Stone and wife. The said Stone and wife to have the possession and use of the said negroes during their natural lives, and after the termination thereof, the said slaves are to be equally and rateably divided between said grandchildren, or such of them as may be then living. The said slaves to be at no time under the disposition of said Stone, except for the maintenance, support, and education of said grandchildren, and to be at no time liable for any of his debts or liabilities.” Mrs. Stone obtained possession of this negro, after the death of her husband, and this suit is brought to recover her. There was a judgment in her favor in the court below.

The construction of the deed from Loftin the father, will settle the rights of the parties. Had the conveyance been for the' benefit of persons, other than husband and wife, the interest taken under it would have been joint. That is, the life estate would have been a joint one, and a conveyance by either would have severed the joint tenancy. But in reference to husband and wife the rule is different. In regard to them, it was said in the case of Doe v. Parratt, 5 T. R. 652, “ It has been settled for ages, that when the devise is to husband and wife they take by entireties and not by moieties, and the husband alone cannot by his own conveyance, without joining his wife, divest the estate of his wife.” To the same effect is Glaister v. Hewer, 8 Vesey, 198; Thornton v. Thornton, 3 Ran. 179; Jackson v. Stevens, 16 Johns. 110; 4 Kent, Com. 363; 1 Lomax, Dig. 479. But this doctrine relates in general only to real estate, and to fee simple freehold interests therein. In regard to terms for years, or chattel interests, when they hold by entireties, the husband might claim the entirety so as to bind the wife; 2 Kent, 132. But this is to be understood, when there is no restraint upon his common law right. Grute v. Locroft, Cro. Eliz. 287.

Does such restraint exist in the present instance ? This depends upon the conveyance itself. Does it give a separate estate to the wife, during her life, and to her children afterwards, beyond the reach of any act of the husband? Beyond doubt that was the intention of the donor. There is no set form of words necessary to create a separate estate in the wife. Any terms which show a-manifest intention to exclude the right of the husband, or to show that the wife’s control is independent of the husband’s power, are sufficient for the purpose. Grand Gulf Bank v. Barnes, 2 S. & M. 184; Clancy on Husband and Wife, 262.

The effect of non-registration of the instrument in this state, has been more than once considered in this court. Palmer v. Cross, 1 S. & M. 48; Prewett v. Dobbs, ante, 431. Indeed this point was not made in argument; nor was any question raised, either in this court or in the court below, as to the failure to record in Alabama. We have been furnished with no evidence of the law of that state on the subject, and we see no error in the judgment of the court below.

It is therefore affirmed.  