Sterns v. Weathers , 30 Ala. 712 ( 1857 )

STONE, J.

It may be conceded, without affecting the result of this case, that at the time the woman’s law went into operation, March 1, 1848, the marital right of Samuel Weathers had not attached to the pecuniary legacy of five hundred dollars, bequeathed to the plaintiff’ under the will of her father. In November, 1849, he did reduce the legacy to possession; and the question is, did the act of 1848 take away his right, as husband, to do so ?

The act of 1848 does not operate on rights which existed at the time of its enactment. — See Manning v. Manning, 24 Ala. 386. That portion of the statute, which, it is thought, bears on this question, is in the following language : “If any such estate shall, after marriage, by descent, gift, demise, or otherwise, accrue to any woman,” such property is her separate estate. When did this property accrue to the plaintiff? The answer must be, at the death of the testator; because, if she had died the next day, the legacy would have gone to her personal representative. In other words, the legacy would not have lapsed. It is no answer to this, that probably she could not then demand the payment of the legacy. If the estate was able to pay the debts of the testator, the expenses of executing the will, and any special legacies he bequeathed by the will, her right accrued the very moment the testator died. — Hardy v. Boaz, 29 Ala. 168; Kidd v. Montague, 19 Ala. 619.

It follows from what we have said, that tbis legacy did not accrue to the plaintiff after the statute of 1848 was passed; and hence the plaintiff can claim no rights under its provisions. Both the marriage of the plaintiff with Mr. Weathers, and the death of the testator, dating before March 1, 1848, the marital rights of Mr. Weathers must be determined by the common law. Under that system, he acquired hy his marriage the right to reduce, during the continuance of the coverture, his wife’s choses in action into possession, and thus become the absolute owner of them. He did reduce this fund to possession during the coverture. — See Pickens and Wife v. Oliver, 29 Ala. 528, and authorities cited.

The circuit court did not err, in holding that the plaintiff could not maintain this action ; and its judgment is affirmed.