Carter v. Owens

41 Ala. 217

• Court: Supreme Court of Alabama
• Decided: June 15, 1867
• Status: Published

Opinion

A. J. WALKER, C. J.

The complaint, to which a demurrer was sustained, shows that all the persons interested in a decedent’s estate, as widow, heirs, distributees, legatees, or devisees, including the person appointed executrix by the will, and the husbands of femes covert, (all being adults,) by agreement divided among themselves all the property of the estate according to the direction of the will, paid off all debts against the estate, and delivered the note described to the plaintiff, as a part of her share; and all this was done without probate of the will, or administration of the estate. The effect of such a division was to invest the plaintiff with an equitable title to the note. In the absence of the will, the decisions of this court, heretofore made, would meet every argument in favor of an opposite conclusion.—Anderson v. Anderson, 37 Ala. 683; Marshall v. Crow, 29 Ala. 278; Vanderveer v. Alston, 16 Ala. 494; Miller v. Eatman, 11 Ala. 609; 5 Ala. 308. Does the presence of an unprobated will, as a feature of this case, take it out of the principle of those decisions? We can perceive no sufficient reason why it should. All the parties interested, or to be affected, may as well by agreement divide property, where there is a will, without employing the agency of courts, as in case of intestacy. Parties, competent to act, ought to do that, without the agency of courts, which the courts would ultimately accomplish. To deny them the privilege of so doing, would manifest a judicial abhorrence of harmony. By the probate of the will, the claims of heirs and distributees, and of the widow, would have been subordinated to the directions of the will. This has been accomplished by agreement. There being no debts, the executrix would have had no other duty to perform, than to divide the property according to the will. This, too, has been done by agreement of competent parties. All the ends and objects of judicial proceedings have been accomplished, by agreement of the parties; and that agreement must be effective.

It is admitted, that a will without probate is not evidence of title to personalty.—Kinnebrew v. Kinnebrew, 35 Ala. 628. But the plaintiff’s title is not dependent upon the will. As long as the agreement remains unimpeaehed and undisturbed by the parties, her title is good, even though the will is void. Her title is the result of contract, and is good while the contract stands.

2. Section 2129 of the Code gives a right of action at law, upon a contract for the payment of money, to the party really interested, whether he have the legal title or not” Under this section, the plaintiff may sue, although holding only an equitable title.—Hudson v. Weir, 29 Ala. 294.

3. The note coming to the plaintiff was her separate property.—Code, § 1982. It is made separate by law. The contract, or agreement, under which she received it, did not make it a separate estate. Her interest is, therefore, a statutory separate estate, and is, under section 2131 of the Code, the subject of suit in the name of the wife alone. Pickens and Wife v. Oliver, 29 Ala. 528. The instrument sued upon is a chose in action; and, therefore, a suit upon it does not fall in that class of cases, in which the husband may sue in his own name, he having had possession during the coverture, and the property being afterwards detained from him or converted.—Pickens and Wife v. Oliver, supra.

The nonsuit taken in the court below is set aside, the judgment reversed, and the cause remanded.