#### WITTER *vs.*DUDLEY.

[liEAL ACTION IX NATURE OE E.TECTJIEST. |

1. *Character and duration of trustee’s estate under decree in chancery.*— Under a decree in a cliancory suit, making partition of the estate of the complainant’s deceased father among the distributees; settling the portion of the complainant, who was then a married woman, on a trustee, for her sole and separate use during life, with remainder to her children living at her death; appointing a trustee for her, and requiring that he “ shall give bond, with surety, conditioned that he will account and pay over to the said Mary”, [complainant,] “ and to no one else, all such sums of money as he may *136receive as trustee as aforesaid, (such bond to be in double the value of the personal estate, and double the annual income of the real estate,) and that he will faithfully perform the duties of a trustee, and will abide and perform such order and decree as the court may make touching the said trust estate”, — the legal title is vested in the trustee until the termination of the life-estate, and is not devolved upon the *cestui que trust*by the death of the trustee before that time.

Appeal from the Circuit Court of Lowndes.

Tried before the Hon. Nat. Cook.

This action was brought by Mrs. Mary D. Lamkin, against John Dudley, “to recover the following tract of land: the west half of the north-west quarter of section 29, the south-west quarter of section 20, the southeast quarter of sectio'n 19, the north-east quarter of section 29, and the • south-east quarter of section 20; all in township 15, range 14, in the county of Lowndes.” The plaintiff having married one Francis It. Witter, pending the suit, her marriage was suggested on the record, (Code, § 2150,) and the suit proceeded in her name acquired by the marriage. The plaintiff was the daughter of one Francis Lewis, deceased, to whom the lands in controversy belonged at the time of his death; and claimed said lands under a decree in chancery, rendered in December, 1843, which is hereinafter more'particularly described; while the defendant derived title under a conveyance from one Hamlin F. Lewis, executed in 1852, and was in possession at the commencement of the suit, in February, 1858.

■ The plaintiff offered in evidence on the trial a transcript of the chancery suit, which is made an exhibit to the bill of exceptions, and which shows the following proceedings: The bill was filed in the chancery court of Lowndes, on the 15th December, 1842, by Mrs. Mary D. Lamkin, then the wife of John B. Lamkin, against her said husband, and the heirs-at-law and distributees of her deceased father, Francis Lewis; and sought — 1st, to set aside a voluntary division of the estate, which had been made by the parties interested while the complainant was *137an infant; 2d, to enjoin her ¡husband-from'the further prosecution of proceedings in the probate court to obtain her distributive share of the* estate; 3d, to1 have a;paf£ition and division of the estate made by commissioners under the order of the chancellor; and, 4th, to have*the complainant’s portion of the' estate -settledon a trustee, to be appointed by the court, for her-sole and separatemse during her life, and at her death to her children. Atithe December term, 1842, after all the defendants had ¡filed •answers, admitting the material allegations > of the ¡bill, the chancellor (Crenshaw) rendered ¡a decree,-enjoining • the proceedings in the probate court, setting aside the ¡voluntary division of the estate, appointing commissioners to make partition anew, and ordering that “the¡.portion of said estate to he allotted to the said Many D. .Lamkin be settled on trustees, to be appointed by the master, for the sole and separate use and benefit of the ■ complainant during her life, and at her death to kerhek's.”' At the December term, 1843, the commissioners ¡made-their report, and the master reported his appointment ofT Hamlin F. Lewis as trustee for the complainant; and the- ■ chancellor thereupon rendered a final decree, -confirming the reports, and making partition of the estate. The ■only part of this decree which.it is¡necessary.to ¡¡notice, relates to Mrs. Lamkin’s share of the property,.and is in the following words:

“It is further oi'dered and'decreed, that the ’fallowing •slaves”, (specifying them byname,) “and the ¡following lands”, (to-wit, the lands in controversy in this:suit,) “be' vested in Mary; D. Lamkin, wife of John-B. Lam-kin,, and • daughter of the-said Francis.Lewis, deceased. And it is hereby further ordered -and ’decreed, that the¿porti©n so-vested in the said Mary D. Lamkin be vested and held by her, to and for her sole and separate use, for-and during the term of her natural life, not subject to the-debts, contracts, or forfeitures of'the said JohniB. Lamkins; and after the death of the said Mary D. Lanikin, the said portion of lands and the slaves, with their future increase, to he equally divided among such child or children as the : said Mary D. Lamkin may leave living, .share and share *138alike, — the child of'any deceased child to take among them the share which their ancestor would have taken,. had su'ch ancestor been alive at the death of the said Mary D. Lamkin; • and upon the death of the said Mary D. Lamkin without leaving such child or children, or their issue, alive as above, then such portion of the said Mary P. Lamkin to vest in the said'John B. Lamkin, her husband, but not otherwise. It is further ordered and decreed, that Ilamlin F. Lewis be, and'he-is hereby, appointed trustee for the said Mary P. Lamkin; that he shall give bond, with good' security, to the register of this court, «conditioned that he will account and pay over to the said Mary D, Lamkin, and’to no one else, all such sums of money as he may receive as trustee. as' aforesaid, (such bond to be in double the value of tile personal estate, and ■double the annual income of the real estate,) and that he -will account annually to this court, and that he will faithfully perform the. duties of a trustee, and that ho will perform and abide sucll'order and decree as the court may -make touching the'said trust estate.”

'“It was admitted,” the bill of exceptions states, “that mo deeds of settlement were ever executed by the said •John B. Lamkin and liis wife, or either of them, as contemplated by the-decree in said chancery suit; also, that 'ilamlin F. Lewi'S'never executed any bond, or other obligation, for the discharge of his duties as trustee under -said chancery decree; also, that said John B. Lamkin ■removed to Mississippi, in 1848-9, carrying with him th.e plaintiff and the slaves allotted to her under said chancery decree, and there died, in 1858; also, that Hamlin F. Lewis left this State in 1858, and died in Texas during that year.”

“ The nourt charged the jury, that under the decree ¡and proceedings in chancery, and the evidence in the ■case, the legal title to the lands sued for was in Hamlin F. Lewis, and that the plaintiff' could not maintain this ^action in her own name; to which charge the plaintiff •excepted, and thereupon took a nonsuit”; and she now ■assigns as error the charge of the court, and moves to set ■aside the, nonsuit.

*139TkoS. WiiLiAMS, for appellant.

Baine & Ns Smith, *contra.*

A. J. WALKER, C. J.

The decree of Chancellor Crenshaw first creates a separate estate for life in the appellant, then appoints a trustee for her, and requires that he shall give bond, with surety, conditioned to account and pay over to her, and to no one else, all *such*sums of money as he may receive as trustee, and that he will account annually with the court, and faithfully perform the duties of trustee, and abide by and perform such order as the court may take touching the *trust estate.*The decree farther requires, that the penalty of the bond should be double the value of the personal estate, and double the value of the income of the real estate. In considering whether this decree vested the legal estate in the trustee, it is proper to observe, at the outset, that the appellant was, at the date of the decree, a married woman.

Where by any instrument a separate estate is given to a *feme covert,*and a trustee is appointed, an established rule of construction requires the courts to strive to so construe it as to exclude the husband from the reception of the legal title, and to vest it in the trustee. — Ware v. Richardson, 3 Md. R. 505, 549; Hill on Trusts, 232, 407; Harton v. Harton, 7 Term, 652; Williman v. Holmes, 4 Rich. Eq. 480; McNish v. Guerard, 4 Strob. 75. It is also an established principle, that the trustee takes the legal title, whenever it is necessary to enable him to discharge the duties imposed upon him; and such necessity exists, when a trustee is required to take and pay over the 2’ents and profits to the *cestui que trust.*— Hill on Trusts, 232, 233, 234; Ware v. Richardson, *supra;*Brewster v. Striker, 2 Comst. 30-37; Morton v. Barrett, 22 Maine, 263; Porter v. Doby, 2 Rich. Eq. 49-53; McNish v. Guerard, 4 Strob. 74; Bass v. Scott, 2 Leigh, 359; Franciscus v. Reigart, 4 Watts, 109. Guided by these rules of construction, we conclude, that the decree of the chancellor, by requiring a bond, conditioned that the trustee shall account for and pay over whatever he may receive as trugtee, *140and shall account annually with the court, and by characterizing the estate, in the last part of the prescribed condition of the bond, as a trust estate, indicates a clear design to impose upon the trustee the duty of receiving and paying over the income of the estate; and that, having this duty imposed Upon him, he takes the legal title.

A trust terminates, whenever its purposes have been accomplished. The language which creates the trust in. this case, indicates a design to make its duration co-extensive with the life-estate. The trustee is appointed trustee for Mrs. Lamkin. "We are not authorized to add a new limitation, by making him trustee for Mrs. Lamkin during coverture. The purposes of the trust will not be accomplished, until the life-estate terminates. — Peake v. Yeldell, 17 Ala. 636; Comby v. McMichael, 19 *ib.*751; Gunn v. Barrow, 17 *ib.*747; Powell v. Glenn, 21 *ib.*468; Hill on Trusts, 239. The death of the trustee does not invest the *cestui que trust*with the legal title. — Colburn v. Broughton, 9 Ala. 364.

The judgment of the court below is affirmed.