Burnett v. Handley. or constructively, no interest vested in him, that could be transmitted on his death. For the second point considered, the decree is reversed, and the cause remanded. BURNETT v. HANDLEY. 1. When a slave is levied on at the suit of three creditors, and is claimed by a stranger, who executes a claim bond to the junior execution only, and that creditor alone contests the title with the claimant, and succeeds in condemning the slave, the other creditors have no right to claim the money which he receives from the claimant, in discharge of the claim bond. Writ of Error to the Circuit Court of Wilcox. THIS was a motion by Burnett, as sheriff of Wilcox county, against Handley; and its object is to obtain the judgment of the Court with reference to the appropriation of money between certain execution creditors. The motion, by consent of parties, was heard and determined by the Judge, without the intervention of a jury, upon the following state of facts, to wit: Handley obtained judgment against one Joseph B. Dossey, at the fall term, 1842; his execution issued on the 5th of December, 1842, and the same day was levied on a slave named George, as Dossey's property. Thereupon the sheriff demanded a bond of indemnity from Handley, which was executed. Afterwards, this slave was claimed by William Dossey, and a bond given to try the right of property. At the fall term, 1843, the slave was held liable to satisfy this execution, and his value assessed at $550, which sum was thereupon paid by the claimant to the attorney of Handley, who now holds the same, subject to the direction of the Court, with respect to its application. On the same day when the sheriff levied Handley's execution, he also levied upon the same slave three others, one in favor of Burnett v. Handley. Francis Bettis, against the said Dossey and James H. McIlvain; one in favor of Wm. T. Matthews against Dossey and David Mandeville, and one in favor of the same plaintiff against Dossey, Wm. F. Daniel and John D. Caldwell. These executions were received by the sheriff on the 22d of August, 1842. There was no proof that any indemnity bond was executed by the plaintiffs in those three cases, or that any indemnity was demanded. It was proved that in the case of Bettis, the money had been paid to his attorney by Burnett the sheriff. It was proved by Matthews, the plaintiff in the two other cases, that the sheriff, Burnett, paid to him the sum of four hundred dollars, and it appeared from the executions, that sum was more than sufficient to satisfy both. At the time the sheriff paid this sum, he was called on to do so by Matthews, and the money was paid at the sheriff's office, and at, and immediately before the payment, the executions were in his hands. Matthews did not receipt to the sheriff for the money in the cases, nor did he assign them to the sheriff, but it was understood and considered by him, when he received the money, that it was received on those executions. The Court, upon this evidence, considered Handley as entitled to have the money applied to the discharge of his execution, and so ordered. To this decision Burnett excepted, and insisted upon the application of the money to the discharge of the other executions. The judgment of the Circuit Court upon this matter is assigned as error. CHAS. DEAR, for the plaintiff in error, insisted that the execution of the indemnity bond by Handley, gave him no superior rights to the slave, unless the other plaintiffs had refused, upon request made, to indemnify also. Here the sheriff may have become liable, and a third party cannot be allowed to show the payment by him, as the ground for acquiring the exclusive right to the money realized from the sale. SELLERS, contra. GOLDTHWAITE, J.-In point of fact, there is no contest here between the several creditors of Dossey as to the appropriation of the money. The sheriff, it seems, conceded his liability to sat McLemore, et al. v. McLemore, Adm'r. isfy the executions which had issued at the suit of Bettis and Matthews: whether this liability grew out of his neglect to require a claim bond from the claimant of the slave levied on, or from his omission to make the money from the other persons against whom as well as Dossey, these executions were issued, does not appear; nor is this material, because, if these creditors were now contesting the right of Handley to the money in the hands of his attorney, it could not be said their's was superior. Handley has, in legal effect, done no more than enter into an arrangement with the claimant, in the nature of an accorded satisfaction of the condition of the claim bond executed by the latter. This right is personal to him, and is not affected, even if the other creditors had a paramount lien upon the slave. In this view of the case, it is unnecessary to determine whether the lien of the other creditors was destroyed by the omission of the sheriff to require a claim bond on their executions. Judgment affirmed. McLEMORE, ET AL. v. McLEMORE, ADM'R. 1. A testator devised the residue of his estate, as his executors thought proper, to his wife, to rear and educate his children, during her life, and proceeds: "As the balance of my children come of age, I will that they receive such a part, of their part of my estate, as my executors shall think proper to give them at that time. Also, I will, that when my daughter, Eliza McLemore becomes of age, and marries, that she receive a part, of her part of my estate as the executors may think proper. I will when my youngest child comes of age, or my wife should marry, then in either case, I will that there be a division take place between my wife, and my children, and each one share an equal part of all my estate." Finally, he declares, "I will, at the death of my wife, all my children to share all my estate equally." Held, that these legacies were vested, the enjoyment of them being postponed until the contingencies happened. 2. One of the legatees having died before the contingency happened, leaving one child by a former wife, and three others by a subsequent marriage, McLemore, et al. v. McLemore, Adm'r. and two of the last children having also died: Held, that the portion of the two last children, in their father's legacy, would descend to their sister of the whole blood, to the exclusion of the remaining sister of the half blood. Error to the Orphans' Court of Montgomery. THIS proceeding was a motion by Moses McLemore, adm'r, for distribution of two slaves among the distributees of his intestate, William McLemore. It appears that the slaves to be distributed, came by the will of James McLemore, the father of William. That William McLemore, at his death, left a widow and four children-one, Mary, by a former marriage, and three by the last marriage, two of which have died, leaving one, Evelina, surviving. It further appeared that William McLemore died before the youngest child of James McLemore arrived at the age of twenty-one years. The will of James McLemore was also in evidence, but need not be here set out, as it is sufficiently described in the opinion of the Court. The Court held, that the two slaves were to be equally divided between the two snrviving children of William McLemore, and directed distribution accordingly; from which this writ is prosecuted, and which is now assigned as error. HAYNE & ELMORE, for the plaintiff's in error, contended, that William McLemore took a vested interest in the slaves, under the will of his father. [6 Vesey, 239; 6 Porter, 507; 5 Ala. Rep. 143; 6 Id. 236; 3 Murphy, 318.] That the interest having vested in him, at the death of his father, James McLemore, descended to his heirs at law, and having died before the contingency happened, upon which it was payable, descended to his heirs at law-and that the estate would go to the child of the whole blood, under the statute of distributions. BELSER, contra, argued, to show, that by the provisions of the will of James McLemore, it was clear the property not divided by his will, was not intended to vest, until the youngest child came of age. That as this event did not happen until after the 'death of William McLemore, the property vested in him, and that his share will be equally divided among all his children equally, whether of the whole or half blood, who will take directly McLemore, et al. v. McLemore, Adm'r. from their grandfather, and not through their father. That grand children may take under the term children, he cited 4 S. & P. 286. Upon the construction of the will, he cited 6 Porter, 21, 507, 523; 11 Wend. 259; 4 Hawks, 227; 6 Vesey, 239; 6 Ala. Rep. 236; 14 Vesey, 389; 3 Murphy, 318; 14 Pick. 318. ORMOND, J.-The question to be decided in this case arises under the will of James McLemore, and is, whether his children took an absolute vested interest in that portion of his estate, or whether it was contingent, and not to vest until the period appointed in the will for its distribution. The general rule upon this subject is, that where the time annexed to the payment of the legacy, is of the substance of the gift, as a bequest to A, when he attains the age of twenty-one years, it does not vest until the contingency happens. This rule, however, like all others adopted for the purpose of expounding wills, yields to an intention inferrible from other parts of the will, that it was to vest immediately. As where the interest is to be paid in the mean time to the legatee. [Fonnereau v. Fonnerean, 3 Atk. 644; and see also, Marr, Ex. v. McCullough, 6 Porter, 507, and McLeod v. McDonnel and wife, 6 Ala. Rep. 236, where this question was elaborately discussed, and the authorities considered. case. There is indeed no difficulty in ascertaining the rule, which is well settled, but in making the application of it to the particular We are then to ascertain, if possible, what the testator meant. He first gives such of his estate as remains, and as his executors think proper, to his wife, to rear and educate his children, during her life. He further provides for specific bequests to some of the children, and proceeds, "as the balance of my children become of age, I will, that they receive such a part, of their part of my estate, as my executors shall think proper to give them, at that time. Also, I will, that when my daughter Eliza becomes of age and marries, that she receive a part, of her part of my estate, as the executors may think proper. I will, when my youngest child comes of age, or my wife should marry, then, in either case, I will that there be a division take place between my wife, and my children, and each one share an equal part of all my estate. I also will, should any of my children die |