The weekly clarion. [volume] (Jackson, Miss.) 1863-1882, 1881-07-07
APRIL TERM, 1881.

.,orted for The Clarion by L. Brame, Attor-
ney-at-Law, Jackson, Miss.
APRIL TERM. 1881.
NJ. VI. STAKES Er AL,
PAYSE KENNEDY x Co
spu.al from the Chancery Court of
EeaSe County, Hon. T. 3. Graham, Chan
arllOr.
By her will Mrs. a. ?. Stakes gave her
Mpds to her children and conferred upon
Ne husband NJ II. Stakes power to sell the
me in the following words: "And l here
n authorize and empower said NJ NJ
Stakes 70 sell and dispose Of any Of the
Itoperty hereby bequeathed in this will
#hen it shall appear to him to be advlsa-
Be 80 to do, having an eye 10 the support
I'D education of the children" After the
Heath of Mrs. Stakes, VI. VI. Stakes mort
Aged the land 70 secure the payment Of an
recount for supplies necessary for the sup
b. Of the child rem. which were sold him
Is the faith Of the mortgage. The mort
1heee- flied this bill TO subject the land TO
d. for The payment Of the debt.
Prom "a decree in favor OF complainants,
D. appeal is taken 4.
EoorER, j.
HtH
a rearling to Sessioas q. Bacon, % Miss,
LA a married woman having authority TO
MI took Dy implication the power to mort
npe The beneficial interest in the proper
~ bciH, vested In the woman, the courts III
#bu-trui1g the statute a. 10 her power OF
#sp9-iti1u looked to the policy of the law
ID the intention of the legislature, aud
Led that the power to sell conferred on her,
SECLUDED the power TO mortgage.
IAN examination of the authorities has
Ihpressed NJ with the correctness of those
MecIsigu, which hold that as a general rule
II mere power 70 sell does not include the pow
Id To mortgage. Ia most Of the cases in which
mel power has been declared, it is stated to
Ia because mortgage is a sale on condition.
ID this state as in many others, a mortgage
s. now treated ut law Is IN equity rs mere
Security tor a debt. The legal estate can
4nly be used for the purpose of enforcing
DC payment Of the debt secured. The
lords Of the testatriK comforting the power
ID her husband to sell and dispose Of the
property are evidence, we think, of an IN
AentioH ON her part simply to authorize
Conversion Of the property into money by
An out and out sale, and that under the
bower the husband was not authorized to
4xecute the mortgage
The dsrree rs 5-ccerseF and bill dismissed.
Raymond Reid, for appellants.
s. !. ID. Eads and 0. \. Lucket, Jr., contra.
70 be reported.
IARY l.. PBEssuRoyE, Fl. AL,
ID. =. COMFORT.
Anpeal from the Circuit Court of Attala
rountv. Hon. :. : Calhoon, Judge, pro tenn.
By the last will and testament ofRichard
Ross, who died in Attala county, in this
bat, in lS47, he devised certain lands and
hegroe7 to his four grandchildren for life,
fhe having no living children) with an at
tempted remainder TO their heirs. The pro-
eision IS that when the two elder of the
srand-children shall become Of age, there /
hall be a partial division of the property
nd that thereafter these two shall receive
&c net profits Of the portions allotted to
Ihem until the two younger children shall
ebme of age, at which time there shall be a
1Rneral and equal division of all the prop /
skty among the four grandchildren, aud
hfter such division, the land and negroes
IIlotted 10 each shall be held by them for
nd during J1cir natural lives in trust only .
id the use Of the heirs Of their bodies"
This was an action Of ejectment in which /
fhe court below held that the grandchildren
no. au absolute estate in fee in the land de /
Fised.
gHAIMERs, l.. !.
8 Il any estate ct freehold was by this will I
rDnlerrtd upel the first takers, IL is quite +
elear that such takers by operation OF the /
Fhle i'm ~heiiey's case, were vested with an
1btate an fee whereby the attempted lImlta- /
tion To the heirs OF their bodies was defeat
"a, since it Is plain attempt by the same
snstrument to convey to one or more persons
M freehold estate with limitation over
~ way of remainder OF another e.
NC of the same quality, to the heirs OF
Den bodies A. a class Of persons to take IN
perpetuitv. 1t falls. therefore, strictly with
ID the rule in Shelley's case.
II is argued. however, that no estate
Whatever was granted TO the grandchildren
- the VIII, hut that they were mere naked
tfustees during their lives for their own
Aeir-, and that taking no estate of freehold,
hey cannot be vested with an estate in fee.
Nhis argument is based upon the words
shall be held by them = n in trust
LILY. for the heirs OF their bodies" and it
#buid be plausible ii other clauses of the
lii did not show that they were not to be
1Sere naked trustees, but We're clothed with
"a actual seizure of the property, and the
1sufructuarv enjoyment OF the rents and /
ntofts for life. IL differs in no respect from
80 ordinary life estate and Is consequently
"a estate of freehold.
Ii is a well settled rule that a grant for /
Ia of the income and profits of personal
Mroperty or of the interest arising from stocks +
&hd other investments will set IN operation
the rule in Shelley's case, whenever by the (
shme instrument there Is limitation over T.
Id the heir or heirs of the body of the first
hker. ! t5rti0ri will it apply where 1t Is
1eal estate thas is so granted, with the right
q possessions aud usufructuary enjoyment
Is the first taker; nor will the application
"a the words I'm trust for his heir" TO the
Hrantee of the life estate affect the result.
In G1rA e. Baldten, , Vesey, G46, per
sbna!ty was limited to trustees to pay the
Mrofts to Edwin Turner Garth for life and
Mherwards to pay the same to the heirs
lin his body. 1t was held that Ed
hard Turner Garth was vested by the
4hle in Shelley's case with absolute owner
ship of the property though such was mani
tstly not the intention OF the testator.
In CcppIc'c ADpeaI, % Penn. state, 2ll,
evise of real estate "to my son IN trust and
&r the use of his heir$at-law, to have and
ia hold during his natural life, but he shall
fm no wise sell or dispose of the same during
H. natural life" was held to pass the tee to
me- son.
Judgment affirmed.
III. ). Allen and c. VI. Brooke, for appel
fpts.