Turner v. Cole , 24 Ala. 364 ( 1854 )

GIBBONS, J.

It must now be deemed the settled law of this court, that where no provision is made for the -wife by the will of the husband, it is not necessary for her to dissent from the will, as prescribed by the act of 1812 (Clay’s Digest 172 § 3), in order to avail herself of the provision which the law makes in her favor. — Green v. Green, 7 Porter 19; Martin’s Heirs and Administrators v. Martin, 22 Ala. 86. The objection, therefore, that the complainant in the court below did not dissent from the will of the said John Cole, within the time prescribed by law, cannot avail the defendant as a bar to her rights, as no provision whatever was made for her in said will.

But it is insisted, that, although the complainant may not be barred by reason of her failure to dissent from the will of her husband within the time prescribed by law, yet, by her adultery after she eloped from her husband, she has forfeited her dower rights, and therefore cannot obtain the relief which she seeks. In support of this position, it is insisted, that, although, by the common law, adultery did not operate a forfeiture of dower, yet, by the act of Westminister 2, Edward I, it was made to have that effect; and, inasmuch as that act was passed prior to the settlement of this country by our ancestors, it must be considered as part of the common law in this country ; and therefore, regarding this statute as in force in this State as a part of the common law, the complainant is barred of all claims in the premises. In the view which we take of the case made by the record, we do not deem it important to decide whether the English act referred to is in force in this State, as a part of the common law, or not. The bill is filed, not for dower proper in the lands of the decedent, but for a distributive share of the personal estate of the said John Cole. We do not regard the claim set up as a common law claim, but one purely statutory— not of dower proper, but as heir to the deceased. We regard the* second section of the act of 1812 (Olay’s Digest 173 § 4), not as enlarging merely the dower rights of the wife, but as creating an heir to the husband’s personal estate unknown to the common law. This statute we regard as making a species of forced heir in the wife as to the personal estate of the husband, which he can in no way defeat by his will or otherwise. This act, creating as it does an heir to the personal estate who takes absolutely what falls to her, has to be construed by itself, and is not to be considered dower, nor is it subject to any of the disabilities of dower; but, being the creation of a right unknown to the common law, purely statutory, it. can only be subject to the disabilities created by the statute itself calling it into existence. In this view of the case, it becomes entirely immaterial whether adultery in this State operates a • forfeiture of dower or not, as the demand set up by the bill is not one of dower, which is a common law right, but a demand as heir (a forced heir, if you will, of the deceased), which is a right purely statutory; and as the statute creating this right has not thought proper to make adultery a forfeiture of the right, we have no power to legislate ourselves upon the subject, and to create a disability where the statute is silent upon the subject. This view of the case is decisive, as to the complainant’s right to recover on the case made by the record.

It is shown, however, that the estate of the said Cole was finally settled in the Orphans’ Court of Mobile County, before the presentation of the complainant’s demand. The Chancellor disregarded this settlement, and held both the executors and their sureties liable to the complainant’s demand. In this, we think, the court erred. There must be some time when the liability of executors and administrators and their sureties ceases, and wo see no reason whatever for holding the one or the other liable longer than the final settlement of the estate according to law. This, in our opinion, is the extent of their contract. If a party having a claim against an estate, fails to present it until after the final settlement of the estate, it is his misfortune, so far as the representative and his sureties are concerned. His only remedy then is, to follow the assets in the hands of the heir or distributee. To hold otherwise, would be to hold that the liability of an executor or administrator and his sureties was unlimited as to time. To this proposition we cannot assent. The complainant’s bill, therefore, should have been dismissed as to all the parties defendant except' the said Hannah Turner and her husband, and as against, them the decree should not have been in their representative capacity, but de bonis propriis.

The decree of the Chancellor is, therefore, reversed, and the cause remanded, with orders to let the bill stand dismissed as to all the parties except the said Turner and wife ; that an account be taken as to the personal estate of the said John Cole, and that the one half of the said personal estate, after the payment of the debts of the said John, be decreed to the complainant, against the said Turner and wife, to be collected out of the property of the said Hannah. It is further ordered, that the complainant, or appellee, pay the costs of this court.