McDaniel v. Whitman , 16 Ala. 343 ( 1849 )

CHILTON, J.

The judgment of the Orphans’ Court, which determines that the plaintiff in error shall take nothing by his motion, made upon the propounding of his interest as the husband of Nancy, who was the ward of Whitman, we must regard as a final order, from which a writ of error will lie. It is certainly conclusive upon the rights of the husband, and decisive of hi's claim to the monies due, in right of his wife, from the defendant in error. The statute authorises an appeal or writ- of error to the Circuit or Supreme Court, from any judgment or order final made by the County or Orphans’ Court, whether in Vacation or term time- — Clay’s Digest, 297 '§ 4, and we think'the case at bar comes within both its letter and spirit.

The only question raised by the record is — is the husband entitled to monies in the hands of the guardian of the wife after her death, which he had never recovered or had in his actual possession during the existence of the coverture ? According to repeated decisions of this court, the husband is not entitled to the wife’s dioses in action, unless he reduces them to possession dnring the coverture; nor can he by administering upon her estate, after her decease, entitle himself to them, but they go to her distributees. Bibb v. McKinley, et al. 9 Porter, 636, and authorities cited.

It was, however, decided by this court, some ten years since, that the possession of personal property by the wife’s guardian, must be considered the possession of the wife, and as upon the marriage of the ward,”her legal existence becomes merged in that of her husband, the possession by operation of laiv is eo inslanti transfered to the husband, and requires no further act on his part, to vest his marital rights — McGehee v. Toland, 8 Porter, 30. True, that case involved a controversy in respect to a slave, which had gone into the guardian’s possession, but I can see no difference, so far as respects the application of the rule, between one description of personal property and another. The constructive possession of the husband, by virtue of which his marital rights attach, arises out of the relation in which the guardian stands toward him, as well in respect to the money, which the guardian has received, as to the slave. As to both, the possession of the guardian must be regarded as the husband’s possession, and upon the final settlement of the account, the husband, who has survived his wife, must be considered as the person entitled. See the eases refered to in McGehee v. Toland, supra, and also Miller v. Bingham, 1 Iredell’s Eq. Rep. 423; Bates v. Dandy, 2 Atk. Rep. 207; Jarman v. Wollatten, 3 Term. 620.

The judgment is consequently reversed, and the cause remanded.