Willis v. Cadenhead

28 Ala. 472

• Court: Supreme Court of Alabama
• Decided: January 15, 1856
• Status: Published

Opinion

RICE, C. J.

The provisions of sections 1990 and 1997 of the Code do not apply to the separate estate of a married woman, which was created before her marriage, by a deed executed in 1845, containing a provision that such separate estate should be “ free and exempt from all debts or contracts whatever of any husband” she might thereafter marry. — Gerald v. McKenzie, 27 Ala. Rep. 166; Friend v. Oliver, 27 Ala. Rep. 532; Cunningham v. Fontaine, 25 Ala. R. 644; Kidd v. Montague, 19 Ala. R. 618; White v. White, 4 Howard’s Practice Rep, 102; Perkins v. Cottrell, 15 Barb. Sup. Ct. Rep. 446; Ratcliff v. Dougherty, 34 Miss. Rep. 181; Bronson v. Kinzie, 1 How. (U. S.) Rep. 811; Green v. Biddle, 8 Wheat. Rep. 1.

By virtue of that deed, rights vested in her, which could not be divested, nor impaired, by any subsequent legislative enactment. — Bronson v. Kenzie, 1 How. (U. S. Sup. Ct.)‘ Rep. 311, and other authorities cited supra. And we cannot presume that the legislature, in adopting the provisions of the Code in relation to separate estates, intended to violate the constitution by attempting to impair her rights under that deed. If sections 1990 and 1997 of the Code apply to her separate estate, we think it 'very clear that sections 1983, 1987 and 1988 would also apply to it; because, we believe the words “ separate estate”, as used in each of those several sections, have precisely the same meaning and extent. And it is undeniable, that the legislature bad no constitutional power to make the provisions of sections 1988,1987 and 1988 applicable to her separate estate created by said deed. The fair conclusion is, that the legislature did not intend to apply the provisions' of any of the sections above cited to her separate estate; or to any separate estate created by deed prior to the 1st of March, 1848.

Upon her dying intestate in July, 1858, leaving her only child and husband surviving, her husband is not entitled to any part of such separate estate under section 1990 of the Code, or any other statute provision; but all of such estate, after the payment of the debts and charges against the estate, belongs to her child, under sections 1572 and 1581 of the Code.

The counsel for the appellant has not argued any questions except such as are, in effect, decided' adversely to appellant by the propositions above laid down. And as we are satisfied there is no error in respect to those questions, we affirm the decree of the probate court.