Doe ex dem. Robinson v. Quinlan

51 Ala. 539

• Court: Supreme Court of Alabama
• Decided: June 15, 1874
• Status: Published

Opinion

B. F. SAFFOLD, J.

If the appointment of Thomas Welsh as trustee, in the place of Bibb, the deceased trustee, was valid when made, the terms of the marriage settlement were strictly pursued, and the title of the property passed to Connell, the purchaser. In the case of State Bank v. Smith (6 Ala. 75), this question was determined affirmatively. The court said: “ The statute (Clay’s Dig. p. 581) does not in terms authorize the (circuit) court to appoint a trustee, when the trustee appointed by the parties dies; but we have no doubt that the power of the circuit court so to act is within the spirit and intention of the enactment.” It was further held, that the authority to appoint, in case of the death of the trustee, given to the register in chancery (Clay’s Dig. 350, §§ 32, 33), was concurrent, and not in conflict with the power of the circuit court. The withdrawal of chancery jurisdiction from the common-law judges, in 1839, was also held not to impair their power of appointing trustees.

2. If there could be any doubt on this point, the title to the premises in question, under the marriage settlement and the facts of this case, could not possibly have passed to the next of kin, except by returning to Mrs. Welsh, when, eo instanti, it would have enured to the benefit of the defendant. McGee v. Eastis, 5 Stew. & Port. 426. The judgment is affirmed.