Wimberly v. Wimberly

Supreme Court of Alabama

Wimberly v. Wimberly

38 Ala. 40

CourtSupreme Court of Alabama

DecidedJune 15, 1861

StatusPublished

Cited by3 cases

This text of 38 Ala. 40 (Wimberly v. Wimberly) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Wimberly v. Wimberly, 38 Ala. 40 (Ala. 1861).

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Opinion

STONE, J.

We think the probate court erred in entertaining j urisdiction of.tbg c.asemade by the-petition shown in this case. The third- clause of Mr. Aford’s will, com strued in. connection with,.the seventh, vested the title of the slaves, in controversy in Mrs. Wimberly, and does not confer such estate upon her and..her children as can be partitioned under the statute. — Acts-of 1855-6, page 20. What e.state the children have under the will,- or whether after-born children, if such there be, will share in this bequest; we need not inquire, as the probate court has no jurisdicr tjon of this trust estate. — See McCroan v. Pope, 17 Ala. 612; Coleman v. Camp, 36 Ala. 159; Camp v. Coleman, 36 Ala. 163; Robertson & Pettibone v. Johnston, 36 Ala. 197 ; Walthall v. Wynne and Wife, 37 Ala. 37 ; Rugely & [42]*42Harrison v. Robinson, 10 Ala. 702 ; Nimmo v. Stewart, 21 Ala. 682; Hammond v. Nance, 1 Swanst. 35 ; Billingsley v. Harris, 17 Ala. 214; Gerald and Wife v. Bunkley, ib. 170; Shep. Dig. 344.

Reversed and remanded.

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STONE, J.

We think the probate court erred in entertaining j urisdiction of.tbg c.asemade by the-petition shown in this case. The third- clause of Mr. Aford’s will, com strued in. connection with,.the seventh, vested the title of the slaves, in controversy in Mrs. Wimberly, and does not confer such estate upon her and..her children as can be partitioned under the statute. — Acts-of 1855-6, page 20. What e.state the children have under the will,- or whether after-born children, if such there be, will share in this bequest; we need not inquire, as the probate court has no jurisdicr tjon of this trust estate. — See McCroan v. Pope, 17 Ala. 612; Coleman v. Camp, 36 Ala. 159; Camp v. Coleman, 36 Ala. 163; Robertson & Pettibone v. Johnston, 36 Ala. 197 ; Walthall v. Wynne and Wife, 37 Ala. 37 ; Rugely & [42]*42Harrison v. Robinson, 10 Ala. 702 ; Nimmo v. Stewart, 21 Ala. 682; Hammond v. Nance, 1 Swanst. 35 ; Billingsley v. Harris, 17 Ala. 214; Gerald and Wife v. Bunkley, ib. 170; Shep. Dig. 344.

Reversed and remanded.

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Bluebook (online)

38 Ala. 40, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wimberly-v-wimberly-ala-1861.

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