Brown v. Grimes

60 Ala. 647

Opinion

STONE, J.

The legacy to Elizabeth Brown, subsequently Gunn, is purely pecuniary in its character; and the fact that it was made a charge on land does not change its character as a pecuniary legacy. Being a legacy payable in money, when Mrs. Gunn died, intestate, as it is averred, the title and legal right to claim it vested in her administrator, afterwards to be appointed. It did not descend to her children as heirs. They could only claim through a personal representative; and claiming in that capacity, they would be met by the claim and right of their mother’s surviving hus band, to one half her personal estate, under the statute of distributions. The mother was married in 1864, to her last husband, and died in 1869, intestate. There is no averment of a marriage contract between intestate and Mr. Gunn, her last husband, and no averment that he has been divested, in any manner, of control over her estate.—Code of 1876, § 2714; 1 Brickell’s Dig. 567, §§ 64, 66; McConico v. Cannon, 25 Ala. 462; Plunkett v. Kelly, 22 Ala. 655; Varner v. Young, December term, 1876. This principle, or this case, is not at all affected by the rulings in Brashear v. Williams, 10 Ala. 650; Marshall v. Crow, 29 Ala. 178; Anderson v. Anderson, 37 Ala. 683; Perryman v. Greer, 39 Ala. 133; Bethea v. McCall, 5 Ala. 308; Vanderveer v. Alston, 16 Ala. 694.

The bill in the present case was dismissed by the chancellor. He stated no ground on which he based his decree. We find the fatal defect noted above, and, without considering any other question, we feel it our duty to affirm the decree of the chancellor.

Decree accordingly.