WIMBERLY vs. WIMBERLY

WIMBERLY vs. WIMBERLY. [PETITION FOR SALE OF SLAVES FOR PARTITION.] 1. Jkmsdiation of yyt'obaie court to order sale. — Where slaves are b'ogueathed-by a testator to bis daughter» “for the use of said-daughter and her children,” the probate court has no jurisdiction under the ac# approved February 5,1856, (Session Acts, 1855-6, p. 20,) to order a.sale-of the slaves for partition-, on the application of the guardian ol' the ehildren. Appeal from, the Brobate Court of Macon. In the matter -o-f the petition of Lewis T. Wimberly, a® the guardian of the several -minor children of Samuel T. Wimberly, deceased»£or the sale of certain slaves, in which» he alleged, his wards had a. joint interest with tbeis mother, Mrs. Henrietta A. Wimberly* under the will of her deceased father, Guilford Alford. The will of said Alford was executed in Georgia, where bq resided at the time of his death, and was there duly admitted to probate after his death. The 3d and 7th clauses of said testator’s will were in the following words: .“Item 3. I give and bequeath unto my daughter, Henrietta A. Wimberly, my three negro boys, Bob, Washington, and Isaac, called -‘young Isaac f; also, a woman named Lúcy, and a girl named Florida; for tire use of said daughter and her children,, free from the disposition- of her, present or future husbands I, al,s<? . c.ona-.. firm unto-.my said daughter the gift of six negroes, Joe and his wife, Patience, and their four children, heretofore made.” Item 7. I direct that my executor, hereinafter named, shall dispose of the residue of my property, including the negroes not beqüeathed, and.all the real and personal property that I may be possessed, oí at- my death, using hhown discretion as to disposing of the negroes and land at public or private sale ; and the balance of my property, after the settlement of my debts and necessary expenditures, and after carrying out the provisions contained in the preceding items, I direct shall be equally divided' among my four children.” Mrs. Wimberly contested the petition, and interposed a demurrer to-it,-on-the ground that the court had no jurisdiction, on. the facts.therein stated* to order a sale for partition.. The probate court overruled the demurrer, and, on the proof adducediby the guardian, granted an order of sale ; to which rulings and decisions Mrs. Wimberly reserved exceptions, and she now assigns the same as error.. Chilton & Yancey, N. S. Graham, and Mayes & Abercrombie, for the appellant. Clopton & Ligón, contra. [MAJORITY — STONE, J.] STONE, J. We think the probate court erred in entertaining j urisdiction of.tbg c.asemade by the-petition shown in this case. The third- clause of Mr. Aford’s will, com strued in. connection with,.the seventh, vested the title of the slaves, in controversy in Mrs. Wimberly, and does not confer such estate upon her and..her children as can be partitioned under the statute. — Acts-of 1855-6, page 20. What e.state the children have under the will,- or whether after-born children, if such there be, will share in this bequest; we need not inquire, as the probate court has no jurisdicr tjon of this trust estate. — See McCroan v. Pope, 17 Ala. 612; Coleman v. Camp, 36 Ala. 159; Camp v. Coleman, 36 Ala. 163; Robertson & Pettibone v. Johnston, 36 Ala. 197 ; Walthall v. Wynne and Wife, 37 Ala. 37 ; Rugely & Harrison v. Robinson, 10 Ala. 702 ; Nimmo v. Stewart, 21 Ala. 682; Hammond v. Nance, 1 Swanst. 35 ; Billingsley v. Harris, 17 Ala. 214; Gerald and Wife v. Bunkley, ib. 170; Shep. Dig. 344. Reversed and remanded.