Murphree v. Singleton

37 Ala. 412

• Court: Supreme Court of Alabama
• Decided: January 15, 1861
• Status: Published

Opinion

A. J. WALKER, C. J.

-The first charge given by the court, is erroneous. In case of-a legacy bequeathed to an executor, where the two characters of executor and legatee are united in the same person,' the same rule prevails which governs in other cases — that there must be either an express or an implied assent to the legacy, before it can be regarded as severed from the estate, and vested in tbe legatee. — 2 Williams on Executors, 1184; 2 Lomax on Executors, 133 ; 1 Roper on Legacies, 849. The principle that the acceptance of a deed of trust by a creditor, when tbe conveyance is beneficial to him, will be presumed, affords-no analogy to «guide us--in-the-decision of the question in hand, as is argued by the appellee’s counsel. The question is not, whether the individual accepted the legacy when it .was tendered to him, and it was beneficial to him to accept it; but, whether the executor assented that the individual should have the legacy as his property, separated from the estate. It may be that the law would from circumstances imply the assent of the executor, in such a case as this.‘the more readily.; but there is-no principle known to us,'.which will authorize the implication in'the absence of any acts or declarations.conducing to-show it. — Walker v. Walker, 26 Ala. 262.

By the marriage of the plaintiff, her husbahd became co-representative of the estate, and it was competent for him to assent to the legacy. The assent of one executor is sufficient. — 1 Roper on Legacies, 845. Any .act of an executor, showing that he .has dealt with the property as if it belonged to the legatee, authorizes the implication of his assent'to the legacy. — -1 Roper on Legacies, 848. The ■husband was authorized by ‘the woman’s law’ of this State to receive his wife’s legacy; and upon receiving it, he wouldhe entitled to the income and profits. Upon reducing the note to his possession as trustee, he would become a proprietor -of it so far as the accruing interest was concerned; but .he would have no right to transfer-the note itself, without the participation of the wife. The husband’s transfer would . simply carry the interest accruing after the marriage. The sale of the note by the.husband was, therefore, a valid transfer of his ownership of the interest due on the note after the marriage. It involved the exercise of an individual ownership over the note, and must be deemed an assent to the legacy, in which he was himself interested. The result is, that when the husband sold the note, a right of action accrued to the wife, for the conversion of the note by the purchaser ; and ¡this right was not lost by>the husband’s death.

[3.] The declarations of Singleton, which were offered in evidence, merely tended to show that he had traded the note to the defendant. 'This fact could not be proved by the declarations,.and they were properly excluded.

[4.] It may be that facts exist, from which the husband’s assent to the legacy may be presumed. ; and that his assent 'would have the same effect as -the wife’s assent. Yet we cannot hold, that, therefore,-the-charge of the court is simply error without injury-; for --we cannot affirm, from the bill of exceptions, that -the circumstances existed which .justify the presumption of the husband’s-assent. The bill of exceptions simply shows, -that the evidence tended to show the facts -upon -which the husband’s assent would be .presumed.

The judgment is reversed, and the cause remanded.