
    CALDWELL vs. PICKENS’ ADM’R.
    [BILL IN EQUITY BY WIEE, AGAINST EURCHASER AT EXECUTION SALE AGAINST HUSBAND, EOR RECOVERY OE SLAVES, ACCOUNT OE HIRE, &C.]
    1. Presumed gift, and how disproved. — When a fatter sends a slave tome with tis newly married daugtter, tte law presumes ttat a gift was intended, unless a different intention is expressed at tte time; tut ttis presumption may be repelled by proof of tte contemporaneous acts and declarations of tte grantor, stowing ttat a loan only was intended.
    2. Deed of gift to “only proper use” of grantor's married daughter, held to create separate estate. — A deed of gift, by wtict a fatter conveys a female slave to tis married daugtter, “to tte only proper use and betoof of tte said Margaret and ter bodily teirs, ter executors, administrators, and assigns forever,” creates a separate estate in tte grantee.
    
      Appeal from tbe Chancery Court of Dallas.
    Heard before tbe Hon. James B. Clark.
    The bill in tbis ease was filed, on tbe 28tb March, 1860, by Mrs. Margaret C. Pickens, suing by ber next friend, against ber husband, James Y. Pickens, John C. Caldwell, and Samuel Oliver; and sought a recovery of certain slaves, (or a decree for their value,) with an account of their hire. Tbe complainant claimed a separate estate in tbe slaves( under a deed of gift from ber father, Sample Orr, which was dated tbe 23d July, 1840, and a copy of which was made an exhibit to tbe bill. Tbe slave conveyed by said deed, who was tbe mother of tbe other slaves in controversy, was seized under an attachment, at tbe suit of tbe defendant Caldwell, as tbe property of tbe complainant’s husband, James Y. Pickens, on the 18th March, 1846; and on tbe 9th November, 1847, after tbe rendition of judgment in tbe attachment suit, was sold under tbe attachment, and under an execution issued on tbe judgment. Tbe defendant Caldwell became tbe purchaser at tbe sheriff’s sale, and, on tbe 31st December, 1847, sold and conveyed said slave to tbe defendant Oliver, who removed to Texas before tbe bill was filed, and carried tbe slaves with him. Tbe following is a copy of tbe deed of gift, under which tbe complainant asserted title to tbe slaves:
    “State of Alabama, i Know all men by these pres-Dallas county. j ents, that I, Dr. Sample Orr, of tbe State and county aforesaid, for and in consideration of tbe natural love and affection which I bear to my daughter, Margaret Pickens, of said State and Lowndes county, as well as for tbe further consideration of tbe sum of three hundred dollars to me in band paid, by tbe said Margaret Pickens, at and before tbe ensealing and debvery of these presents, (tbe receipt whereof is hereby acknowledged,) have given and granted, and, by these presents, do give and grant, unto tbe said Margaret Pickens, and to ber bodily heirs, a certain female slave, named Amy, aged about nine years old; to have and to bold tbe said female negro slave, with ber future increase, to tbe only proper use and behoof of tbe said Margaret Pickens and ber bodily heirs, ber executors, administrators, and assigns forever. And I, tbe said Dr. Sample Orr, for himself, his executors, and administrators, the said female negro slave, with her future increase, unto the said Margaret Pickens and her bodily heirs, her executors, administrators, and assigns, against the claim of him, the said Dr. Sample Orr, his executors, administrators, and against the claim or claims of all and every person and persons whatsoever, shall and will warrant and forever defend by these presents. In witness whereof,” <fcc.
    A decree pro confesso was taken against James Y. Pick-ens, and also, on publication, against Samuel Oliver. The defendant Caldwell demurred to the bill, on several specified grounds, all of which were overruled by the chancellor. He also answered the bill, alleging that the slave Amy was given to the complainant by her father, several years before the date of the deed, and passed into the possession and control of her husband under that gift; and he insisted that the husband’s marital rights had attached to the slave, and that the deed of gift, if executed, was intended to defeat the just claims of his creditors.
    On final hearing, on pleadings and proof, the chancellor rendered a decree for the complainant; and his decree is now assigned as error.
    Goldthwaite, Rice & Semple, for appellant.
   STONE, J.

Among the facts about which there seems to be no controversy in this case, we think we may safely lay down the following: That Sample Orr, the father of Mrs. Pickens, was the former owner of the slave Amy, who, with her increase, is the subject of the present suit; that Amy was sent by Sample Orr, the father, in company with Mrs. Pickens, to the home of herself and husband, in the year 1837, and remained there until she was seized and sold as the property of the husband, under an attachment and execution in favor of Caldwell, the levy being made in 1846, and the sale by the sheriff to Caldwell in 1847; that prior to 1837 — date not given — the complainant had intermarried with James Y. Pickens, the defendant in the attachment suit under wbicb tbe slave Amy was sold; and tbat on tbe 23d day of July, 1840, Sample Orr executed tbe deed to tbe complainant, wbicb is attached to tbe bill as an exbibit.

Looking alone at tbe unexplained act of Mr. Orr in sending tbe slave borne with bis married daughter, Mrs. Pickens, in tbe year 1837, tbe law raises tbe presumption that she was sent as an advancement — was a gift, — and on such presumption,- unrebutted, tbe title of tbe husband to tbe property would at tbat time attach.—Merriwether v. Eames, 17 Ala. 332; Rumbly v. Stainton, 24 Ala. 716; Burnett v. Branch Bank, 22 Ala. 643; Hill v. Duke, 6 Ala. 261; Olds v. Powell, 7 Ala. 655; O'Neil v. Teague, 8 Ala. 345.

It is alleged, however, tbat at tbe time Amy was sent to Mrs. Pickens, (1837,) it was understood and agreed tbat she was sent as a loan; tbat she was accepted as such, and tbat in 1840, a deed of gift was executed by Mr. Orr to bis daughter, Mrs. Pickens, securing said slave to her separate use. Whether or not she was sent as a loan, is tbe first question for our consideration.

Tbe presumption wbicb tbe law raises, tbat property sent by a father to bis child, recently married, is a gift, may be rebutted by proof tbat a less estate was intended. It is said, however, in a well-considered case, tbat “this must be done by clear and satisfactory proof tbat it was notoriously and expressly understood not to be a gift at tbe time.”—Hill v. Duke, 6 Ala. 261-2. See, also, Norris v. Bradford, 4 Ala. 205. Tbe declaration tbat tbe intention was not to give, “should be open and clear, and not left to be inferred from doubtful or ambiguous circumstances, wbicb tbe donor might avail himself of, or suppress at bis pleasure.”—Miller v. Eatman, 11 Ala. 613.

In tbe case of Olds v. Powell, (7 Ala. 655,) speaking of tbe character of tbe proof wbicb may be resorted to, on tbe question of gift vel non, tbe court said, “It is not easy to conceive of any more conclusive mode of ascertaining the intention, than by tbe declarations of tbe donor at or about tbe time.”—See, also, Powell v. Olds, 9 Ala. 865; O'Neil v. Teague, 8 Ala. 345.

Under tbe rule laid down in tbe case of Cole v. Varner, (31 Ala. 248,) we think tbe evidence in this record is sufficient to establish the fact, that, at the time the slave Amy went into the possession of Mrs. Pickens, it was known and understood that she went as a.loan, and not as a gift. The proof in this record, made by the witness Mrs. Clay, is quite as full to establish the understanding, and to repel the presumption of a gift, as was the proof of the single witness to prove the loan in that case. In fact, the proof in this case, by Mrs. Clay, is fuller than it was in that, by Mr. Yarner. In addition, we have, in this case, the corroborating testimony of Mr. Clay, that the slave Amy did toot go to Mrs. Pickens as a gift. True, the two witnesses differ as to the expressed ulterior intentions of Mr. Orr; but they do not differ as to the substance and effect of what was then done. This testimony is wholly unlike that which was commented on, and held insufficient, in the cases of Bennett v. Branch Bank, 22 Ala. 642, and Rumbly v. Stainton, 24 Ala. 715.

The result of this case, then, must depend on the next inquiry; namely, does the deed of gift from Mr. Orr to Mrs. Pickens exclude the marital rights of her husband? The language of its habendum clause is: “To have and to hold the said female negro slave, with her future increase, to the only proper use of the said Margaret Pickens and her bodily heirs, her executors, administrators, and assigns forever.” Unless this clause contain words of exclusion, there are none in the deed.

When this identical title to these slaves was before this court at a former term, between the present complainant and her husband as plaintiffs, and one of the defendants to this suit as defendant, in construing the deed of gift from Sample Orr to Mrs. Pickens, we said : “The uncontroverted proof in this case is, that the feme covert plaintiff had a separate estate, created by deed, in the slaves for the recovery of which the suit is brought.”—Pickens v. Oliver, 82 Ala. 627. If this decision be adhered to, it is decisive of the present case. But we are asked to review the grounds of our former decision; and under the statute, it is our privilege, if not our duty, to do so. — Acts of called session, January, 1862, p. 33.

It is the settled law of this State, of most or all of the other States, and of England, that no particular words or phrases are necessary to the creation of a separate estate. The intention is to be gathered from the language of the gift; and if there be found in the gift, whether written or oral, words which show that the rights of the husband are excluded, this is enough to secure the property to the sole use of the wife. The following decisions of this court contain examples of words which are held to be sufficient to exclude the marital rights of the husband: Gould v. Hill, 18 Ala. 84; Strong v. Gregory, 19 Ala. 146; Cuthbert v. Wolfe, ib. 373; Williams v. Maull, 20 Ala. 721; Jenkins v. McConico, 26 Ala. 213; Ozley v. Ikelheimer, 26 Ala. 332. And the following are examples that are not sufficient to create a separate estate: Harkins v. Coalter, 2 Porter, 463; Lamb v. Wragg, 8 Porter, 73; Dunn v. Bank of Mobile, 2 Ala. 152; Inge v. Forrester, 6 Ala. 418; Branch Bank v. Wilkins, 7 Ala. 588; O’Neil v. Teague, 8 Ala. 345; Cook v. Kennerly, 12 Ala. 42; Moss v. McCall, 12 Ala. 630; Bender v. Reynolds, 12 Ala. 446; Pollard v. Merrill, 15 Ala. 169; Hale v. Stone, 14 Ala. 803; Geyer v. Branch Bank, 21 Ala. 414; Mitchell v. Gates, 23 Ala. 438; Johnson v. Johnson, 32 Ala. 637.

The following authorities may also be consulted on this question: Hamilton v. Bishop, 8 Yerger, 33; Torbert v. Twining, 1 Yeates, 439; Lee v. Prieaux, 3 Bro. C. C. 385, note; Wills v. Sayers, 4 Madd. 409; Blacklow v. Laws, 2 Hare, 49; Tyler v. Lake, 2 Russ. & Mylne, 183; Roberts v. Spier, 5 Madd. 491; Beales v. Spencer, 2 Younge & Coll. 651; Lamb v. Milnes, 5 Vesey, 517; Rycroft v. Christy, 3 Beav. 238; Wardle v. Claxton, 9 Sim. 524; Kensington v. Dolland, 2 Myl. & K. 184; Rudisell v. Watson, 2 Dev. Eq. 430; Ashcraft v. Little, 4 Ired. Eq. 236. A summary of the words and phrases pronounced upon by the courts may be found in the following authorities: 2 Story’s Equity, §§ 1382, 1383; Hill on Trustees, 420; 2 Bright on Husband and Wife, 204; Harkins v. Coalter, 2 Porter, 463; Lamb v. Wragg, 8 Porter, 73; O’Neil v. Teague, 8 Ala. 345; Johnson v. Johnson, 32 Ala. 637.

It will be seen from the authorities cited above, that where gifts are made to unmarried women, stronger language is required to exclude the marital rights, than if the donee be a married woman.—See Gould v. Hill, 18 Ala. 84; Cuthbert v. Wolfe, 19 Ala. 377; Jenkins v. McConico, 26 Ala. 237.

There has been much discussion on the legal import of the phrases “own use,” and “proper use,” when found in deeds to married women. These, it is now settled, do not create a separate estate.—See Mitchell v. Gates, 23 Ala. 446; Blacklow v. Blacklow, 2 Hare, 49; Kensington v. Dolland, 2 Myl. & K. 184; Rudisell v. Watson, 2 Dev. Eq. 430.

The language of the present deed is, “only proper use.” These words are much stronger than own and proper, when found separately. Whether we attach to the word proper the meaning of own, or of peculiar, as the different authorities have it, the word only remains, which is strictly a word of exclusion. In Cuthbert v. Wolfe, (19 Ala. 376,) this court ruled, that the words, “to and for the only use and benefit” of a married woman, created a separate estate. This is an authority directly in point; for, in that case, the word “only” was the cardinal word of the deed — the only word of exclusion.—See, also, Ozley v. Ikelheimer, 26 Ala. 336.

There is no error in the decree of the chancellor, and it is affirmed.  