Bryan v. Bryan

35 Ala. 290

• Court: Supreme Court of Alabama
• Decided: June 15, 1859
• Status: Published

Opinion

A. J. WALKER, C. J.—

Section 1994 of the Code does not authorize the removal of the husband from the position of trustee of his wife’s separate estate, unless, from imbecility, intemperance, or some other cause, he has become incapable of, or unfit for, the discreet management and control of such separate estate. It is not sufficient cause for the removal of the husband, under this statute, that he is intemperate, unless the intemperance shall render him incapable of, or unfit for, the discreet management and control of the separate estate. The testimony in this case shows, that the defendant’s intemperance had not been carried so far as to produce that effect. There was some testimony tending to show that his intemperance had seriously interfered with his business habits ; but it is fully overcome by the other testimony in the case.

Whether the evidence establishes the immorality of the defendant, his harshness as a husband and father, and his infidelity to the nuptial bed, we need not in this case inquire; for it is apparent that those things have not incapacitated or unfitted him for the discreet management and control of his wife’s separate estate.

It is insisted, that the defendant is rendered unfit for the management and control of his wife’s separate estate, by the fact that he is cutting wood for sale to steamboats from his wife’s land, which is not suitable for cultivation, and of but little value except for its timber. It is infer-able from the testimony, that the land was bought with a view to its use in the precise manner in which the defendant used it, and was given with that view to. the defendant’s wife; and that the husband supplied wood to steamboats from it with the knowledge of his wife, and without any dissent on her part. It is furthermore deducible from the testimony, that the wife interposed not the slightest objection to the appropriation of the forest by the defendant as above specified, until this suit was commenced; and that he acted as he did without any.idea of injuring his wife’s estate. Under such circumstances, we can find nothing in the cutting of the timber from the land which will justify the conclusion, that the husband was either incapable of, or unfit for, the discreet management of his wife’s separate estate.

'We have considered the evidence set out in the transcript, notwithstanding no note of the evidence was made as required by tbe 71st rule of chancery practice, adopted in 1854; because the result is not changed by considering the evidence, and we desired to pass on the merits.

The decree of the court below is affirmed.