Hopper v. McWhorter , 18 Ala. 229 ( 1850 )

PARSONS, J.

It is clear that the possession of Mrs. Tódd wás the possession of her daughter. They were minors when the deed 'conveying the slaves to them was executed by Thomas, and the delivery of the slaves to Mrs. Todd, the mother of the donees, could not convert their rights into a chose its action. — McGee v. Toland, 8 Port. 36; Broome et al. v. King, 10 Ala. 819. Nor can it make any difference that the rights of the donees under the deed from Thomas were joint at the time of the marriage of John T. Pratt with Eleanor, one of the donees, and that no division took place until after his death; for it is the settled rule that the personal property of the wife in possession passes to the husband by the marriage, and if her interest be that of a tenant in common with others, the husband becomes a tenant in common. — Chambers v. Perry, 17 Ala. 726, and cases there cited; Hyde v. Stone, 9 Cow. 230. Pratt therefore by his marriage became entitled to her undivided interest or share in the slaves, which on. his death was transmitted to his administrator. But it is contended that the administrator of Pratt is estopped from claiming title to the share allotted to Mrs. Pratt after the death of her hasband. The facts relied, on as creating the estoppel are these: After the death of Pratt, the slaves were divided between the donees, and the share to which his administrator was entitled was delivered to Mrs. Pratt. The administrator was present at the division and made no objection to Mrs. Pratt receiving the share allotted t© her; but he, having also married one of the donees, received the portion allotted to his wife. We can perceive none of the qualities of an estoppel in this. Mrs. Pratt, who received the slaves to which her husband’s administrator was entitled, gave nothing for them. The administrator made no representations which it would be inequitable for him to disiegmu; uor, so far as we see, did he say or do any thing in reference to the division, but simply permitted the share, to which he as administrator of Pratt was entitled, to go into the possession of his widow. This could not operate as a divestiture of his title Consequently the plaintiff has failed to show a title to the slaves, and the judgment must be affirmed.