Rogers v. Boyd

33 Ala. 175

Opinion

STONE, J.

The present suit was instituted by the husband of the intestate, and, so far as the record discloses, the creditors do not desire to charge their debts upon the estate. Hence, we are not called upon to decide whether they have any, and if any, what rights in refer- once to this property. It will be time enough to consider their rights, when they invoke their consideration.

Neither are we required, by anything apparent upon this record, to decide how far a married woman, having a separate estate, created either by contract or by law, can by contract fasten a charge upon her separate estate, which courts of equity will enforce in favor of creditors. That subject was under discussion in the cases of Hoot v. Sorrelle, 11 Ala. 386; Baker v. Gregory, 28 Ala. 544; Daniels, Elgin & Co. v. Sprague and Wife, 31 Ala. 444; Gibson v. Marquis and Wife, 29 Ala. 668.

Nor does the complainant in his bilí show that he was entitled to have the estate distributed. He alleges no ground for asking a distribution.—Code, § 1821.

Before the act of 1850, if a wife, having a separate estate, permitted her husband to have and use its rents, income and profits, the law presumed she made him a present of them, and he was not liable to account for them.—Roper v. Roper, 29 Ala. 247. The act of 1850 and the Code, by express terms, constituted the husband trustee of the wife’s separate estate, and relieved him from liability to account for rents, income and profits. This provision, from the time of its enactment, fastened itself upon estates of married women held under the act of 1848.—Weems v. Bryan, 21 Ala. 302; Durden and Wife v. McWilliams & Smith, 31 Ala. 438; Pickens v. Oliver, 29 Ala. 528; Daniels, Elgin &. Co. v. Sprague and Wife, 31 Ala. 444.

In Durden and Wife v. McWilliams & Smith, supra, we considered the question of the liability of the separate estates of married women for family supplies, under section 1987 of the Code.—See that case, and Ravesies and Wife v. Stoddart & Co., 32 Ala. The liability there declared, is not one created for the benefit of the husband, ■ but for the benefit of the creditor, and possibly for her own support and protection.

With these explanatory remarks, we cordially adopt the arguments and conclusions of the chancellor.

Decree affirmed.