HARALSON, J.
The conveyance under which the plaintiff claims title, was a deed of gift to a trustee for her and her daughter and any after born child or children, executed by her husband, L. L. Simmons, on the 28th of February, 1883. The conveyance was made to Thos. J. Poster, as trustee. He is not a mere naked trustee under the deed, as is contended by counsel for appellant, but he was an active trustee, charged with duties to perform, in reference to the property. It is provided in the deed, that he shall apply all the rents, proceeds, issues and profits of the property to the sole use, benefit and behoof of the plaintiff, the wife of the grantor, for and during the term of her natural life, free [703] from the control, disposal, debts and liabilities of her husband, the grantor, permitting the plaintiff to control and manage said property and its proceeds, as to her may seem best, and hire, rent, lease or sell any or all of it, in any manner she may deem best. Here she is given the privilege of controlling the property by renting or selling, but if she should not exercise the power to do so, it remained with the trustee. Again, it was clearly within the contemplation of the grantor, that in case of sale of any of the property, by the wife, she would reinvest the proceeds in other property, in order that his design in reference to his daughter, and any after born children, might be carried out. The provision in the deed in that respect is, “Provided that if the said Sallie .1. Simmons shall make any such sale of the whole or any part of such property so conveyed, she may reinvest the proceeds of any such sale in other property of equal value, in the name of the -said trustee, for the use and benefit of (my) said daughter, Sallie J. Simmons, and such other children as may hereafter be born, as aforesaid.” The consideration for making the deed had been declared, in the beginning, as follows : “I, said L. Lavender Simmons, of said State and county, for and in consideration of the natural love and affection which I have and bear for my beloved wife, Sallie J. Simmons, and of the sincere and strong desire I have for providing for her comfortable maintenance and support, during her natural life, and also of the natural love and affection which T have for my daughter, Sallie J. Simmons, (the daughter bearing the name of her mother), and such other children as may be born to me of my said wife, Sallie J. Simmons, and also, in consideration of the trust and confidence I have in the honor, honesty and integrity of Thos. J. Foster, * * * do hereby give, grant, bargain, sell and convey to him, the said Thos. J. Foster, the following real estate,” and personal property, both fully described. He afterwards makes provision for the disposition of the property, in case his wife survives him and should marry again, as follows: “But should the said Sallie J. Simmons survive me, and marry another husband, it is my desire, that the said trustee shall cause to be divided between her, the said Sallie J. Simmons, and my daughter, Sallie J. Simmons, and such other children as may hereafter be born, as aforesaid, or their [704] heirs, if any, all my property which then remains undisposed of, according to the statutes of distribution of the State of Alabama, which shall then be in force.” He then makes provision, for the disposition of his property-in case his daughter and after born children shall survive his wife, concluding: “And in the further trust, that in the event my said wife, Sallie J. Simmons, shall depart this life, leaving me surviving, then the property hereinbefore conveyed, or so much thereof as has not been advanced to or distributed among my said daughter, Sallie J. Simmons, and sucli other children as may be born to me by my said wife, shall, on the death of my said wife, Sallie J. Simmons, be transferred and conveyed back to me by the said Thos. J. Foster, trustee as aforesaid, or his successor in office.”
T.t is plainly manifest, from the foregoing recitals of said deed, that the trustee therein, was not a mere naked trustee, but one with active duties to perform; that the grantor was making provision, not alone for the benefit of his wife, the plaintiff, but for his then only child and daughter, and such children as might be born to him thereafter; that he created in his wife, a life estate only in the lands described in the deed, and here sued for, subject to be divested under the conditions named in the instrument, and that her estate in said lands, was an equitable separate estate, not subject to the provisions of the Code as to the separate estates of married women. The distinction preserved, between equitable and statutory separate estates, before the adoption of the present system on that subject, in 1887, as found in the Code, as we have frequently held, has been .abrogated, by the later enactment, except in cases where the property is conveyed to an active trustee for the wife, — a trustee having some duties to perform in reference to the property, — and that, with this single exception, equitable separate estates are now statutory. — Connolley v. Mahoney, 103 Ala 568 ; Scharf v. Moore, 102 Ala. 468, and authorities, in those cases cited.
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HARALSON, J.
The conveyance under which the plaintiff claims title, was a deed of gift to a trustee for her and her daughter and any after born child or children, executed by her husband, L. L. Simmons, on the 28th of February, 1883. The conveyance was made to Thos. J. Poster, as trustee. He is not a mere naked trustee under the deed, as is contended by counsel for appellant, but he was an active trustee, charged with duties to perform, in reference to the property. It is provided in the deed, that he shall apply all the rents, proceeds, issues and profits of the property to the sole use, benefit and behoof of the plaintiff, the wife of the grantor, for and during the term of her natural life, free [703] from the control, disposal, debts and liabilities of her husband, the grantor, permitting the plaintiff to control and manage said property and its proceeds, as to her may seem best, and hire, rent, lease or sell any or all of it, in any manner she may deem best. Here she is given the privilege of controlling the property by renting or selling, but if she should not exercise the power to do so, it remained with the trustee. Again, it was clearly within the contemplation of the grantor, that in case of sale of any of the property, by the wife, she would reinvest the proceeds in other property, in order that his design in reference to his daughter, and any after born children, might be carried out. The provision in the deed in that respect is, “Provided that if the said Sallie .1. Simmons shall make any such sale of the whole or any part of such property so conveyed, she may reinvest the proceeds of any such sale in other property of equal value, in the name of the -said trustee, for the use and benefit of (my) said daughter, Sallie J. Simmons, and such other children as may hereafter be born, as aforesaid.” The consideration for making the deed had been declared, in the beginning, as follows : “I, said L. Lavender Simmons, of said State and county, for and in consideration of the natural love and affection which I have and bear for my beloved wife, Sallie J. Simmons, and of the sincere and strong desire I have for providing for her comfortable maintenance and support, during her natural life, and also of the natural love and affection which T have for my daughter, Sallie J. Simmons, (the daughter bearing the name of her mother), and such other children as may be born to me of my said wife, Sallie J. Simmons, and also, in consideration of the trust and confidence I have in the honor, honesty and integrity of Thos. J. Foster, * * * do hereby give, grant, bargain, sell and convey to him, the said Thos. J. Foster, the following real estate,” and personal property, both fully described. He afterwards makes provision for the disposition of the property, in case his wife survives him and should marry again, as follows: “But should the said Sallie J. Simmons survive me, and marry another husband, it is my desire, that the said trustee shall cause to be divided between her, the said Sallie J. Simmons, and my daughter, Sallie J. Simmons, and such other children as may hereafter be born, as aforesaid, or their [704] heirs, if any, all my property which then remains undisposed of, according to the statutes of distribution of the State of Alabama, which shall then be in force.” He then makes provision, for the disposition of his property-in case his daughter and after born children shall survive his wife, concluding: “And in the further trust, that in the event my said wife, Sallie J. Simmons, shall depart this life, leaving me surviving, then the property hereinbefore conveyed, or so much thereof as has not been advanced to or distributed among my said daughter, Sallie J. Simmons, and sucli other children as may be born to me by my said wife, shall, on the death of my said wife, Sallie J. Simmons, be transferred and conveyed back to me by the said Thos. J. Foster, trustee as aforesaid, or his successor in office.”
T.t is plainly manifest, from the foregoing recitals of said deed, that the trustee therein, was not a mere naked trustee, but one with active duties to perform; that the grantor was making provision, not alone for the benefit of his wife, the plaintiff, but for his then only child and daughter, and such children as might be born to him thereafter; that he created in his wife, a life estate only in the lands described in the deed, and here sued for, subject to be divested under the conditions named in the instrument, and that her estate in said lands, was an equitable separate estate, not subject to the provisions of the Code as to the separate estates of married women. The distinction preserved, between equitable and statutory separate estates, before the adoption of the present system on that subject, in 1887, as found in the Code, as we have frequently held, has been .abrogated, by the later enactment, except in cases where the property is conveyed to an active trustee for the wife, — a trustee having some duties to perform in reference to the property, — and that, with this single exception, equitable separate estates are now statutory. — Connolley v. Mahoney, 103 Ala 568 ; Scharf v. Moore, 102 Ala. 468, and authorities, in those cases cited.
The errors assigned may, after this, be readily disposed of. There was no error in admitting the note and mortgage of the plaintiff to John C. Webb, and the transcript from the chancery court of Marengo county. The transcript was a history of the transaction out of which the note and mortgage grew. The conveyance of [705] tlie land sued for, to the plaintiff, by her husband, being voluntary, was fraudulent and void as to the debts of the husband, contracted before the date of its execution, and it was so held in said chancery cause, and the lands in question were, by the decree of said court, ordered sold, for the payment of the debt of the creditors filing the bill, in said equity proceeding. At the sale made by the register, under that decree, John C. Anderson became the purchaser, and paid the money into court. A motion was made by L. L. Simmons, one of the defendants in said suit, and the grantor in said conveyance, to set aside said sale, for reasons he disclosed in his petition for that- purpose. In order to make a tender of the money which had been paid into court by the purchaser, with 10 per cent, and lawful charges, —said Simmons not being able to do so, — the plaintiff herself, for the purpose of relieving her estate from the incumbrance thus existing on it, borrowed the money from said Webb, with which to make the tender, and redeem the property from the charge and lien fixed on it by said decree of the chancery court. Webb, who was a total stranger to said chancery proceeding, and who had no interest in it or the property in question, on application to him, to lend the money for the purposes in hand, refused to lend it, to L. L. Simmons, but did agree to lend it to Mrs. Simmons, upon her executing the note, and mortgage on the lands in suit, to secure the payment, of the same ; and he did do so, L. L. Simmons giving his written consent for his wife to execute the papers, and joining with her, in the execution of the mortgage. The note and mortgage were then, the independent contracts and obligations of Mrs. Simmons, entered into to save her own property, by relieving it from an incumbrance on it, existing before she acquired it, and she is estopped to deny their binding obligation on her. In equity, whatever interest she has in the land, passed by the mortgage as a security for the loan. She introduced the deed of trust to Foster, as the title on which she seeks to recover. The other papers referred to, were introduced, very properly, against plaintiff’s objection, to show defendant’s connection with the title. He introduced, besides, deeds showing title from said Webb, under said mortgage.
Tt is very clear, again, that the plaintiff had no legal [706] title to the land in question. That title was in Foster, the trustee, and she cannot maintain ejectment on it.
There was, therefore, no error in giving the general charge for the defendant,
Affirmed.