Thweatt et al. vs. Gammell et al.

ted to jail for contempt in case they did not. This action of the chancellor is the error assigned.

This court has repeatedly decided not to interfere with the discretion of the court below in matters pertaining to injunctions except in cases where that discretion was grossly abused. In cases where the chancellor punished for disobedience to his restraining order-indeed to the final injunction he grantswe should be still more reluctant to interfere. It can be no excuse that the chancellor casually remarked in the hearing of defendant that the injunction would not interfere with an application for homestead. The injunction was violated, not by applying for a homestead but by selling the mules. The case at bar is one that can make no appeal whatever to the judgment of a good man for interference with the rulings of the court. Gammell and Stapler were securities for one of the Thweatts. The other united with his brother in mortgaging to them this property to save them harmless. In a short time they set to work to dispose of the property. James T. says Robert actually does exThe injunction is that they Those exempted may or may not have belonged to Robert. The affidavits were conflicting. The mortgage was joint. James swore that by the exemption they would sell and assert all their legal rights. Robert actually sold The sale itself was, probably, to say the least, illegal; at all events, it was in the teeth of the injunction. The equity is all with their sureties, the punishment mild, the indemnity pledged to the sureties all gone in one way and another, and the refunding this ill-gotten money inadequate to indemnify them. As far as it goes it should be applied, and if the balance of the money which these sureties have been constrained to pay were within its grasp, equity would rejoice to constrain these defendants to pay to complainants the last cent of their just demands.

they will do so by exempting it. empt seven mules and sells them. shall not be sold.

Let the judgment be affirmed.

Carswell vs. Schley et al.

JOHN W. CARSWELL, executor, plaintiff in error, vs. HENRY J. SCHLEY et al., defendants in error.

(This case was argued at the last term and the decision reserved.)

1. By the marriage settlement Mrs. Miller and her two children by Dr. Miller, were tenants in common of the whole property, each with an interest of one-third.

2. At the death of Mrs. Miller her third passed to him, half of it by survivorship, and the other half because he was her heir-at-law.

3. Dr. Miller was entitled to take the profits and labor of the whole property while his wife was in life only. After her death he and his two children by her, were tenants in common in both corpus and future profits,

4. In view of the doubtful construction of the marriage settlement, all the defendants in the original bill were proper parties,

Estates.

tors.

Husband and wife. Distribution. Equity. SON. Burke Superior Court.

1874.

Administrators and execuParties. Before Judge GIBNovember Adjourned Term,

Henry J. Schley, in right of his wife, and Baldwin B. Miller, filed their bill against John W. Carswell as executor of Baldwin B. Miller, deceased, Sarah Dowse and husband, Gideon Dowse, and Robert J. Morrison, making, in substance, the following case:

The testator, Baldwin B. Miller, intermarried with Rosina S. Morrison on October 29th, 1827, and complainants, Francis V. Miller, now Schley, and Baldwin B. Miller, were the only issue. At the time of such marriage Mrs. Rosina S. Morrison was a widow with two children, to-wit: the defendants, Sarah Dowse and Robert J. Morrison.

John B. Morrison, the former husband of Rosina S., was possessed of a large estate, real and personal, of the value of $........., to which there were three heirs-at-law, (said John B. having died intestate,) namely, the said Rosina S. and her two children aforesaid, each of whom took a third at the division. Before marriage the said Rosina S. and said testator, entered into a marriage settlement with James Anderson, trustee, whereby the property of the said Rosina S,

Carswell 75. Schley et al.

one-third of the estate of her late husband, was conveyed to said trustee for the uses, trusts and purposes:

"That is to say, in trust for the said Rosina S. Morrison, until the said intended marriage shall take effect, and from and immediately after the solemnization thereof, then upon trust that the same shall not in any wise be subject or liable to the debts of the said Baldwin B. Miller, her intended husband, but that the said property, together with its increase, shall remain and inure to the proper use, benefit and behoof of the said Rosina S. Morrison and such child or children, being issue of her body, lawfully begotten by the said Baldwin B. Miller, to his, her or their heirs, executors, administrators or assigns forever. Provided, nevertheless, and it is expressly understood and agreed upon between the parties to this instrument, that the mesne profits and labor of the said property when divided, both of land and negroes, together with the increase of said negroes, shall and may be used and taken by the said Baldwin B. Miller, for the joint use, benefit and behoof of him, the said Baldwin B. Miller, and the said Rosina S. Morrison, during their joint lives, provided they shall live together, but if they should disagree and separate, then the aforesaid property shall remain with the said James Anderson in trust for the sole use and benefit of the said Rosina S. Morrison. And it is further expressly understood between the parties to this instrument, that if the said Baldwin B. Miller should die before the said Rosina S. Morrison, that the above property, with the increase of the negroes, shall go to and vest in the said Rosina S. Morrison, to her and her heirs, executors, administrators and assigns forever. And it is further understood that if the said Rosina S. Morrison should depart this life, with or without issue, that the aforesaid property shall vest and belong to the said Baldwin B. Miller during his natural life, and at his death one-half of said property shall go and be disposed of in such manner as he may think proper by last will and testament, or otherwise, to his heirs, executors and assigns; and the remaining half or moiety of said property, the said Rosina S. Morrison shall

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Carswell vs. Schley et al.

have full power and authority to dispose of by last will and testament, but should she make no disposition of it, it shall then vest in and belong to such person or persons as would be her heirs agreeable to the laws of this state."

Miller went into possession of the property embraced in the marriage settlement, and used and enjoyed it with the income and increase thereof, until his death. While he was a man of energy and capacity, he was at the time of said marriage of quite limited means, having little or nothing besides his profession as a doctor of medicine. Yet by the income and increase of said property judiciously used, applied and invested by him, he was, at the date of emancipation, estimated to be worth $300,000 00 or other large sum. But by the results of the war his estate was reduced, perhaps to the value of $150,000 00, all or most of which was increase of the property formerly of his said wife, now the property of complainants, which they claim, allowing that $1,000 00 may have been the result of his own labor and practice. The annual rental of the lands was worth the sum of $........., and the annual hire of the negroes, $.., to say nothing of the productiveness of the land, and the increase of the negroes, and other large profits accruing from said property.

Mrs. Rosina S. Miller, formerly Morrison, died September 19th, 1851. Her husband, the testator, administered on her estate. Subsequently he intermarried with Cornelia E. Polhill. He died on the 24th February, 1873, testate. By his last will and testament, (which was duly probated and admitted to record,) he "treated the whole property bequeathed by him as his own property." After some specific bequests, he devised the residue of his estate to his last wife and children. To his son, B. B. Miller, he gave the interest on $1,000 00, assigning as a reason therefor that he had made "sufficient provision" for him "by deed," and stating as a reason why he devised nothing to Mrs. Frances V. Schley, the other complainant, that he had "already made ample provision" for her "by deed of trust," in which he had "given

Carswell vs. Schley et al.

her a portion greater than will fall to the share respectively" of his children by his last wife.

Complainants claim that by the terms of said marriage settlement they took a vested fee simple in the property thereby conveyed, and its increase, subject to the use of the rents, issues and profits thereof by the said Miller, for the mutual benefit of himself and said wife during their joint lives, with a proviso that in the event of the death of his said wife, he surviving, he still to have the use of said property for life. Now that the life estate of said Miller is terminated, they are entitled to be put in possession of the property in the possession of his executor, of the value of $40,000 00.

John W. Carswell is executor of B. B. Miller, and they have demanded of him their property, also an account, and he refuses to comply with their request. He sometimes pretends that the whole estate, by the terms of said marriage settlement, vested in his testator upon the death of said Rosina S.; whereas complainants charge the contrary, and say that the clear intent of said instrument was to give the fee, in the event of child or children born of said marriage, to said child or children, reserving only a life estate, to be jointly enjoyed so long as both should live and live together, and in the event of her death before her husband, then for his life. At other times he pretends that, at least by the terms thereof, said instrument gives to said decedent one-half of said estate; whereas complainants charge the contrary, for the reasons. above assigned, and state that if said Miller was entitled to any right of property at all in said trust estate, (which they deny,) it was only to one-half of the rents, issues and profits derived from the corpus of the estate, and which had accrued at the time when it came into his hands, together with the increase and profits of said rents, issues and profits, turned over at the time with the corpus of the estate. Again he pretends that there are other claimants for a part of the property, namely: Robert J. Morrison and Gideon Dowse, in right of his wife, Sarah Dowse, formerly Sarah Morrison, and that they insist that they are entitled with the Miller children to