Blevins v. Buck , 26 Ala. 292 ( 1855 )

RICE, J.

—The equity of the wife to a settlement out of her choses in action and equitable interests, was a right well known in this State, at and before the passage of the act of February 4th, 1846, entitled “ an act to protect the rights of married women.”

By the first section of that act it is provided, “ that in all cases where a married woman may be entitled to a legacy, or to a distributive share of the estate of a deceased person, or to any other chose in action, not reduced to possession, she may, by filing a bill in chancery, have such legacy, distributive share, or choses in action, vested in a trustee for her sole and separate use and support, and for the support and maintenance of her family, if it shall be made to appear to the chancellor that the same would probably be lost to her, if permitted to go into the hands of her husband, either from his insolvency, intemperance, or improvidence ■ and in like manner, if she has an interest in lands belonging to the estate of a deceased person, either by descent or devise, the same may be secured for the foregoing purposes, by filing a bill pursuant to the provisions of this act, at any time before a division of such lands shall have been made.”

By the second section, the proceedings under the act are prescribed.

By the only other section it is provided,11 that such married woman shall have a right to dispose of any such property, real or personal, by will; and in case of her death, without having made such disposition, the same shall be divided and distributed as in other cases of intestacy.”

The equity of the wife, as it existed at and before the passage of the act above cited, did not authorize the court to require the husband to settle the whole of her choses in action and equitable interests upon her and her children, but a reasonable proportion of them only. — 1 Bright on Husband and ■Wife, p. 240.

Her children had no equity, in their own right, which could be asserted against her wishes, or in opposition to her rights. She had the right to waive her equity, even after the institm tion of her suit, at any time before an order or a decree; and if she did waive it, her children’s right was thereby defeated, for their right was at her disposal until an order or a decree. 1 Bright on H. & W., pp. 242 to 244; 2 Story’s Eq. Jurisp., §§ 1402 to 1419.

It is obvious, that the act of 1846 conferred upon the wife the right, in all cases embraced by its provisions, to exclude her husband from, and secure to herself for. the purposes therein mentioned, all her choses in action, legacies, distributive shares, and equitable interests, real and personal, not reduced to possession. This right was generally, if not universally, more valuable to her than her equity to a settlement. But it is evidently inconsistent with that equity; for she could not take the whole under the act of 1846, without thereby destroying her equity to a settlement out of it.

Our opinion is, that the intention of the act was not, by mere force of its provisions, without any act on the part of the wife, to destroy her equity to a settlement as it then existed ; but the intention was, to tender to her by its provisions what was supposed to be a more valuable right, and to leave it to her election to assert her equity to a settlement without regard to the act, or to avail herself of the right tendered by the act.

This construction comports with the title of the act itself, and is in accordance with the spirit of our legislation in relation to married women.

Her election, when made and consummated by a final decree, would not only conclude her, but her children also ; for their right was dependent upon her and her acts, as above shown.

In the present case, the wife made her election to take- the benefit of the act of 1846, and accordingly obtained the property under its provisions. Hence, it is clear, that the provisions of that act became the law of that property, both as to herself and her children.

Under the provisions of that act, and her bill filed in pursuance thereof, the decree of the chancellor vested the property in a trustee, for her sole and separate use and support, and for the support and maintenance of her family ; and the act gave her the right to dispose of the property by will, and provides, that “ in case of her death, without having made such disposition, the same shall be divided and distributed as in other cases of intestacy.”

Whether, during the life of the wife, the property could have been sold to satisfy a charge created upon it by her, after the decree had vested it in the trustee as aforesaid, we do not decide, because it is unnecessary to decide that question. But we have no hesitation in holding, that after said decree had been made, she could, during her coverture, create a charge upon said property, and that such charge can be enforced by a bill filed after her death, and by a sale of the entire property, if necessary to pay off such charge, under a decree made under such bill.

This conclusion seems to ns to be inevitable from the phraseology of the act of 1846, and the observance of the following established principles, to-wit: 1st, that where property has been settled upon a married woman to her separate use, she is to be deemed in a court of equity as having all the power of a feme sole over it, except to the extent that her power may have been restrained, expressly or by dear implication, by the instrument creating such separate estate, or by statute; 2d, that she may charge such separate estate for the payment of her husband’s debts, by an agreement freely and fairly entered into, unless restrained as aforesaid.—Bradford v. Greenway, 17 Ala. 797; McCroan v. Pope, ib. 612; Collins v. Rudolph, 19 ib. 616; Collins v. Lavenberg, ib. 682; Ozley v. Ikelheimer, at the present term; 2 Story’s Equity Jurisp. § 1398.

Conceding that, when property is settled upon a trustee for the sole and separate use and support of a married woman, and for the support and maintenance of her family, under the provisions of the act of 1846, she and her family were to have the use of the property as a joint fund until her death, yet it is clear, that by force of the provisions of the third section of the act, this right of her family ceases at her death ; and after her death, no member of her family can take any interest in the property, except as her legatees, devisees, or distributees. And as, after her death, they cap only take as her legatees, devisees, or distributees, they are estopped from saying that it is not her property.

To a bill filed after her death, to subject personal property settled under the aforesaid act to a charge upon it, created by her during her coverture, her children are not necessary parties. The administrator of an intestate, in such a case, represents the distributees as to the personalty.

When a note, under seal, is executed by husband and wife, and is transferred for valuable consideration by the obligee to another, without any writing, and by delivery merely, the transferror and transferree may join as complainants in a bill to enforce its payment out of the separate estate of the wife, upon which it is a charge.—McLane v. Riddle, 19 Ala. 180.

There is no error in the proceedings of the Chancery Court in this cause, • of which the appellant can complain, and its decree is affirmed.