Henderson v. Segars et al. was imposed on or deceived; that the defendant, before he would purchase the premises, ten years after the deed in question was executed, obtained her consent to the purchase; that he is a purchaser under a judicial sale, and thus entitled to the most favorable consideration of the courts; and that the only objection to the certificate is the omission of a word, which the most respectable courts have pronounced unnecessary. If, under such circumstances, the defendant's title is still held invalid, he cannot but feel that his is an exceptional case, and one of extreme hardship; and that his interests are sacrificed to what one of the judges calls "a severe criticism on language", and to the ingenuities of refined reasoning. 2. As to the next objection, it is enough to say that, on a fair reading of the statute, it cannot be made to appear that it forms any part of the officer's duty, before whom a married woman appears, to make any inquiry or examination as to her age. This construction has never been adopted in this State, either by the courts, the bar, or the officers by whom such certificates are taken. Per Curiam (March 10).-This application for a re-hearing has been very fully considered, and is overruled. HENDERSON vs. SEGARS ET AL. [BILL IN EQUITY BY CESTUIS QUE TRUST AGAINST TRUSTEE TO SET ASIDE SETTLEMENT AND COMPEL ACCOUNT OF TRUST.] 1. Estoppel against trustee by acceptance of trust.-A trustee for a married woman and her children, under appointment from the chancery court, knowing at the time of his acceptance that the deed creating the trust was fraudulent as to creditors, assumes all the duties, liabilities and disabilities which attach to ordinary trustees, and is estopped from setting up against the beneficiaries the claims of creditors, or his own claims as surety of the debtor. 2. Settlement of trustee set aside on objection by beneficiaries.-If such trustee sells the trust property under a power of attorney from the wife, applies the proceeds Henderson v. Segars et al. of sale, with her consent, to the payment of the debts on which he was bound as surety, obtains her receipt showing that the proceeds had been applied for her support, and uses it as a voucher on the settlement of his trusteeship,-equity will not recognize such an execution of the trust, but will set aside the settlement on the application of the beneficiaries; and the trustee will be held estopped from insisting that the proceeds were applied as the court, on a proper application, would have directed. 3. Construction of trust deed.—A deed conveyed certain slaves to a trustee "for the support and maintenance" of a married woman "and her children during her life, and at her death to become the absolute property of her children", with power to the trustee, if he at any time should deem it necessary, to sell any portion of the property, and to apply the proceeds to the support and maintenance of the beneficiaries. On bill filed by the beneficiaries against the trustee, the record did not show that the husband had ever claimed his wife's interest in the property; and the court cited Hill and Wife v. McRae, 27 Ala. 175, as indicating their views with respect to the wife's interest. APPEAL from the Chancery Court of Pike. Heard before the Hon. WADE KEYES. The material facts of this case, as disclosed by the pleadings and proof, may be thus stated: On the 8th September, 1843, one William B. Darby executed a deed to his brother, Jeremiah Darby, by which, in consideration of natural love and affection for his niece, Sarah Eliza Hanchey, he conveyed a negro woman and her children to said Jeremiah, in trust for the support and maintenance of the said Sarah and her children; and the deed contained the following provisions: "Said property is to be held by the said Jeremiah Darby in trust for the maintenance and support of the said Sarah, during her natural life, and the heirs of her body, should any be begotten; and, at the death of the said Sarah, the same is to be divided equally and proportionally between her children, should she have any. To have and to hold the aforesaid property, to him, the said Jeremiah Darby, and his heirs, in trust, however, for the use and maintenance herein before named. And it is hereby understood by these presents, and expressly declared, that the aforesaid property is to be held by the said Jeremiah Darby in trust for the use of the said Sarah and her children, should there be any, during the life of the said Sarah; and at her death, the same is to vest absolutely, and become the absolute property of the children of the said Sarah, which she may hereafter have by the said Henderson v. Segars et al. John Hanchey, and the legal heirs of such as may be deceased, to be by them held and enjoyed forever. And it is further understood, that if, during the life of the said Sarah, it should become necessary, in the view of the said Jeremiah Darby, to sell off a part, or the whole of said property, for the benefit and maintenance herein before named, then, and in that case, it shall be lawful for the said Jeremiah Darby to dispose of a part or all of said property, at public or private sale, and apply the proceeds arising from such sale to the use hereinbefore named; and should the said Jeremiah Darby deem it necessary, during the life of the said Sarah, to dispose of said property, or a part thereof, it shall be lawful for him to execute titles to the purchaser in his own name, thereby barring the interest of the said Sarah and her children in said property, which they may have either in law or equity. In witness whereof", &c. At the time this deed was executed, William B. Darby, the grantor, had no title to the slaves conveyed, nor did he have possession of them; but the slaves belonged to Wiley White, who was the father of the said Sarah, and who made a fraudulent sale of them to the said Darby, in order that the latter might convey them by deed to said Sarah,-the whole transaction being a scheme to defraud said White's creditors, and this fact being known to the said Sarah at the time. The trustee named in the deed, after his acceptance of the trust, became insane, and was removed by the chancery court; and on the 21st October, 1845, said court, on the application of Mrs. Hanchey, appointed Eli Henderson as trustee, in his stead, who thereupon accepted the trust, and entered into bond. At the time said Henderson accepted the trust, he was privy to the fraud attending the transaction, and the negroes had been privately removed to Arkansas, with his knowledge, to avoid the debts of said Wiley White. On the 8th November, 1845, Mrs. Hanchey, whose husband had previously died, executed to Henderson a power of attorney, authorizing him to go to Arkansas and sell the negroes, and to apply the proceeds to the payment of White's liabilities on his official bond as sheriff, on which Henderson was bound as surety. Henderson accordingly went to Arkansas, took possession of the negroes under the power of Henderson v. Segars et al. attorney, carried them to Mississippi, and there sold them for $700, which was about the average market price of slaves. With this money he returned to Alabama, and Mrs. Hanchey then gave him a receipt for the amount, acknowledging that it had been applied according to the provisions of the deed of trust; but, at the time this receipt was given, Mrs. Hanchey knew that the money was to be applied to the payment of White's liabilities as sheriff, and consented thereto, and Henderson accordingly so applied it. In December, 1846, Henderson applied to the court for a final settlement of his trusteeship, and a final settlement was made in November, 1847. On this settlement, Henderson charged himself with the $700 realized from the sale of the negroes, and obtained credit for the amount specified in Mrs. Hanchey's receipt, and then resigned his trust; but there was no order discharging him by the court. In June, 1851, Mrs. Hanchey, having intermarried with Hugh R. Segars, filed her bill in chancery, by her said husband as next friend, against said Henderson, praying that said final settlement and receipt might be set aside and held for naught, that an account might be taken of the trust property which had come to the hands of Henderson as trustee, that he might be removed from the trusteeship, and her husband appointed in his stead; and the prayer for other and further relief was added. The bill alleged the execution of the deed of trust, the removal of the first trustee, the appointment of Henderson, and his acceptance of the trust; that complainant consented to his sale of the negroes, on his representations that it was necessary for her support; that he applied the proceeds of sale to the payment of liabilities against himself and others, and afterwards, by repeated importunities, and by taking advantage of his confidential relation, obtained from complainant the receipt which he used as a voucher on the settlement of his trusteeship, and thereby obtained credit to the amount therein specified. An amended bill was afterwards filed, bringing in as parties complainant Hugh R. Segars, in right of his said wife, Mary A. Segars, an infant daughter of said Hugh R. and Sarah E. Segars, and John W. Hanchey, a minor son of said Sarah and her first husband. Henderson v. Segars et al. The defendant answered the bill; admitting his acceptance of the trust, and all the other material facts alleged; setting up the final settlement and receipt, and the original fraud in the execution of the deed, in bar of the relief sought by the bill; and demurring for want of equity. The chancellor rendered a decree in favor of the complainants, which is now assigned for error. NAT. HARRIS, for the appellant: 1. If all the complainants are not entitled to relief, the bill must be dismissed.-Moore v. Moore, 17 Ala. 631; Wilkins v. Judge, 14 ib. 137. 2. Under the terms of the deed, Mrs. Segars did not take a separate estate in the slaves, but her husband (Hanchey) took an estate in them during her life; and Mrs. Segars, therefore, was not entitled to any decree against the appellant.-Lamb v. Wragg & Stewart, 8 Porter, 73; Cook v. Kennerly & Smith, 12 Ala. 42; Pollard v. Merrill & Eximer, 15 ib. 169; Strong v. Gregory, 19 ib. 146; Bender v. Reynolds, 12 ib. 446; Gayle v. Br. Bk. at Mobile, 21 ib. 414. 3. But, if Mrs. Segars took a separate estate in the slaves, then, after the death of her first husband, she had the undoubted right to dispose of her separate estate in any manner she thought proper, and a court of equity would have compelled the trustee to hold her interest for the use of her alienee. Greenleaf's Cruise, m. p. 448. Even if she had been a feme covert at the time she authorized the appellant to dispose of the property, she would have had the right to make such a disposition of her interest in it, if she chose.-Hooper v. Smith, 23 Ala. 639; Bradford and Wife v. Greenway, Henry & Smith, 17 ib. 800. 4. The evidence shows that the negroes conveyed by the deed were liable for the debts of White, that the proceeds of their sale were applied to the payment of his debts, and that Mrs. Segars, with a full knowledge of the application of the money, and after she had consulted counsel, signed the receipt set up by the appellant. The proceeds of sale were thus applied as the law, upon a proper proceeding being had for the purpose, would have decreed their application; and the trus tee was authorized to make such an application, since the law |