Key v. Vaughn , 15 Ala. 497 ( 1849 )

COLLIER, C. J.

The jurisdiction of the orphans’ court is apparent from the record ; we are therefore authorized to make .all reasonable intendments in favor of the regularity of its decree. Wyman et al. v. Campbell et al. 6 Port. Rep. 219; Duval’s heirs v. McLoskey, 1 Ala. Rep. 710; McRea admr. v. Pegues, admr, 4 Ala. Rep. 158; Davis v. Davis et al. 6 Ala. Rep. 870. It is pot necessary that the decree should affirmatively show that the guardian of the distributees of the intestate estate resided in this state; under the influence of the principle- stated, it must be presumed that the guardian was so appointed that the .orphans’ court was authorized to recognize him- If this presumption is untrue in pp.int .of fact, th.e objection to his right to receiye the shares of the infant distribu tees -should have been made in the orphans-’ ' court, and being originated here.,,cannot .be entertained.

■ As it .respects the receipt found in the record, purporting to haye been given by the attorney in fact of the husband of ■ Mrs. Vaughn, indicating the -payment of a portion of the-several distributive shares, -in the absence of auxiliary evidence, it cannot be recognized as -proof of what it imports. It does not appear that it was proved or admitted to be genuine,.nor is it shown- that the .court was asked to consider it, and reduce the decree in favor of the wife pro tanto. But if the genuineness of the receipt had been shown, -the proof of the ■execution .of the .power of attorney from which it ds att.empted to deduce the authority of the supposed agent, is altogether insufficient. The certificates of the justice of the peace and clerk of the acknowledgement and registration .of the power, and of the official character of each of these officers, ate not sufficient to -authenticate the po wer under the legislation of congress or according to the common law.

The act of March, 1848, “ securing to married women their separate estates, and for other purposes,” is expressed in terms so exceedingly loose and general, as to devolve upon the court in almost every case arising under it, (until its meaning is settled) the necessity of interpreting the legislative intention by.the legal rules of construction; and often under circumstances of great perplexity and doubt. We think however it may be safely assumed, that it does not require that a trustee should be appointed for the wife to receive her distributive share of an estate, to which she may be entitled during coverture. True, she may object to its reception by her husband, and ask that some third person may be appointed a trustee for her. But the objection must come from the wife, or be made in some other legal mode, or the husband may well be treated as the trustee, and the property of the wife be received by him. Where the separate estate of the wife is received by the husband, he is treated as her trustee, and will be held to account accordingly. Clancy on H. & W. 256, et seq.; Hoot et al v. Sorrell et al. 11 Ala. Rep. 386.

In the present case, the decree ascertains what is due to the wife and each of the other distributees, and directs the several shares to be paid; the wife’s to herseíf, and the other shares to the guardian of the infant distributees. This perhaps may be unobjectionable, but then the decree adjudges that the husband and wife recover jointly; also that each of the infant distributees and his guardian recover. The decree in legal effect gives to the husband and wife a joint execution, and entitles the husband, should the wife die previous to its satisfaction, to an execution in his own name, and the guardian could in like manner control the decree as a survivor in the event of the death of a ward; and this although the guardian had been removed from his trust. In these several particulars the decree is incorrect, but the error is a mere clerical mistake amendable under the act of 1824; and must be here amended at the costs of the plaintiff in error. The clerk of this court will so modify that part of the decree which adjudges the several distributive shares, as to adjudge that the husband and wife recover for the use of the wife, and that the minor children by their guardian recover, setting out severally the names of all the parties. Parks v. Stonum 8 Ala. Rep. 752.

In the ease before us, there was no distinct and substantive order (as in McCleod v. Mason, 5 Port. Rep. 223,) for an execution to issue, consequent upon the rendition of the decree, and an amendment may therefore be here made. In McCleod v. Mason the decree was drawn out in due form and signed by the judge, and afterwards a distinct order was made on motion of the guardian, that execution issue in his name to recover of the former guardian of the infant ward, the. sum adjudged by the decree to be due. We thought that what was technically called the decree was in itself sufficient, and would have authorised an execution to issue in the name of the ward by her guardian; but the subsequent order controlled it, and improperly made the guardian the primary and sole plaintiff in execution. This order introduced an error which was a judicial act, and consequently not amendable in this court. This view is decisive of all the points made by the plaintiff in error, and the consequence is, that the decree must be here amended in the manner we have indicated, at his costs,