English's Ex'r v. McNair's Admr's , 34 Ala. 40 ( 1859 )

A. J. WALKER, C. J.

Section 2274 of the Cod'e prohibits the giving of a charge to the jury upon the effect of the testimony, unless the court is required to give such a charge by one of the parties. Section 2855 of the Code says, that “charges, moved for by either party, must be in writing.” An affirmative charge, upon the effect of the entire evidence, in favor of the plaintiff, was given by the court below. It does not appear from the bill of exceptions whether that charge was or was not given upon the request of the plaintiff, nor, if given upon request, whether it was orally asked, or “moved for” in-writing. The record being silent upon the subject, we must presume that the charge was given upon request in writing, or we must presume that it was given by the coui’t mero motu, or, if requested, that it was not moved for in writing. The first of the above stated presumptions must be here adopted, because it is an established principle with appellate courts to presume the correctness of the proceedings of the court below, and not to impute error unless it is affirmatively shown by the record.

[2.] It is contended, that the administration of one of the plaintiffs, Mrs. George, is void, because she was a married woman at the time of her appointment. Coverture was not, at common law, a disqualification for the office of administratrix, if the husband consented to the appointment; and it seems that the husband’s consent to-the administration, when collaterally assailed, was presumed. — 1 Wms. on Ex’rs, 369; ib. 190-191; 1 Lomax on Ex’rs, 167, marg. 68. It is not disclosed in this casein any way, whether Mrs. George’s husband consented toiler administration. Guided by the common law, and indulging its presumption, we should therefore determine in favor of the validity of the administration. But the influence of our statutory law upon the question is to be weighed, before we can attain a conclusion.

Section 1660 of the Code is in the following words: “No married woman is entitled to letters testamentary, unless her husband consent thereto by a writing signed by him, and filed with the judge of probate; and by giving such consent, he becomes responsible for her acts, jointly with her.” The words of this statute do not import the absolute disqualification and incapacity of a married woman to take the trust of an administration, except with the written and duly-filed consent of her husband. It says she is not “entitled.” She has no claim, no right to be appointed. She is legally unfit for the office, unless the prescribed consent should be given and filed. "Without such consent, her appointment was erroneous, and her administration would be revocable; yet it is not absolutely void. Her administration, like that of an infant or alien, might be at any time revoked by an appropriate proceeding; but, in the absence of such revocation, it is not to be deemed a nullity. — 1 Wms. on Ex’rs, 489-490; 1 Lomax on Ex’rs, 356, marg. 195; Palmer v. Oakley, 2 Douglas, (Mich.) 433; Ray v. Doughty, 4 Blackf. 115; Savage v. Benham, 17 Ala. 126.

Our statute has but asserted a well-recognized principle of the common law, in requiring the husband’s consent to his wife’s administraton. It has only modified the common law, by requiring the consent to be given in writing, and filed in the court, and in making his responsibility a consequence of the written consent. The question of the validity of the wife’s administration, when collaterally assailed, remains now, so far as we can perceive, as it was at common law. While the books leave the question of the manner in which the husband may treat his wife’s administration, commenced during the coverture, in some obscurity and doubt, they are clear in maintaining the validity of her administration, when attacked by third persons, otherwise than by a direct proceeding for its vacation or revocation. — Wms. on Ex’rs, 190-191; Went. on Ex’rs, 377; 1 Lomax on Ex’rs, 147; Palmer v. Oakley, supra.

The statute, in its letter, includes only letters testamentary. The bill of exceptions leaves some room for doubt, whether the deceased did not leave a will, and whether the authority of the plaintiffs was not conferred by letters testamentary. But it is not necessary for us to inquire, whether the spirit and intent of the statute does not bring letters of administration within its operation, or whether the plaintiffs’ are letters testamentary, and therefore within the letter of the statute. For it results from what we have said, that' the statute quoted would not make the authority of the feme plaintiff void, even though its applicability be conceded.

Section 1678 of the Code declares, that “when a married woman is entitled to the administration, it may be granted to her husband in her right.” Whatever may be the effect of that section, in making the appointment of a married woman erroneous, or in giving the husband a right to stand in her place and claim the administration, it cannot be construed into the declaration of her absolute incompetency and incapacity to take the trust, or that her appointment when made is utterly void. It operates upon the right to the trust, and not upon the validity of the appointment.

The only other statute touching the question under, consideration is section 1683 of the Code, which prescribes that “ every person, appointed executor, administrator, or special administrator, except,” &c., “must give bond, with at least two sufficient securities.” The argument drawn from this section is, that a feme covert, being incompetent to contract, cannot execute the requisite bond, and consequently must be incompetent to take the office of administratrix. A reply to that argument, at least plausible and supported by respectable authority, is, that the giving of a bond is not a condition precedent to the appointment; that the administration in fact commences before the giving of the bond; that there might be a revocable, though valid administration, without a bond; and that therefore the question of the validity of the administration could not hinge upon the capacity to execute a bond. — Palmer v. Oakley, supra; Russell v. Coffin, 8 Pick. 143. We, however, neither affirm nor deny the correctness of the reasoning suggested, because we prefer to place our conclusion upon a different point.

The requisition that the administrator shall give bond with sureties does not imply tbat be must necessarily and in all contingencies execute the bond. An administrator may literally comply with the law, by giving a bond with the necessary sureties, without executing it himself. A construction which required an administrator or executor to execute or sign the bond in every case, would render section 1660 nugatory, so far as it allows a married woiyian to be the representative of an estate, when her husband shall give his written consent and the same is properly filed.

The analogy of the decisions of this court, in reference to a kindred question, affords strong support to the conclusion, that there is no unbending rule requiring in all cases the execution of the bond by the administrator. Thus it has been decided, that a statute requiring a claimant in a trial of the right of property, or his attorney, to give bond with security, did not make it indispensable in every case that the bond should be executed by the claimant or his attorney. — Marrs v. Garrett, Minor, 406; Graham v. Lockhart, 8 Ala. 9; Strode v. Clark, 12 Ala. 621.

A similar question, upon a statute requiring the giving of a bond with security by a guardian, arose in Michigan; and it was held, that the execution of the bond by the guardian in every case was not indispensable, and that a married woman could qualify as guardian by giving a bond executed by others, and not by herself. — Palmer v. Oakley, supra. The same conclusion has been attained in England, in reference to similar statutes. — 1 Bacon’s Abr. 552, Bail in Civil Cases, B, 7; 2 Tidd’s Prac. 1252; 8 East, 298.

Upon the reasoning and authorities presented above, we decide, that there is nothing in the statute which prohibits a married woman’s qualification as administratrix by giving a bond executed by others, and consequently her incapacity to contract does not render her appoint“ment void.

[3.] There is some obscurity in the instrument- of writing given by English and wife to Mrs. George. The obscurity is increased by the want of punctuation, the omission of capitals, and the probable want of words intended to be inserted. After a careful examination of it, and endeavoring to so punctuate and construe it as to allow effect to all the words, and to secure consistency among them, we understand it as constituting a bailment by the latter, as administratrix, to the former, and determinable upon the demand of Mrs. George at any time before the final settlement of the estate. We understand it also to contain an agreement, that if recourse to the property for the payment of claims against the estate should not be necessary, Mrs. George would, when her right as sole heir to the estate accrued to her, substitute for that instrument such other conveyance as she might deem proper. It also contains a clause giving to Mrs. George’s co-administrator, A. W. Spaight, in the event of her death before a final settlement, all the rights of Mrs. George under the instrument for the purpose of making a final settlement, provided that English and wife should not be liable for the non-appearance of the prop-perty, if detained by death or accident. The correctness of our construction will be apparent to any one, who will look at the instrument and regard a period as inserted after-the words “until the day of final settlement of said estate,” and the succeeding words, “without recourse,” &c. as commencing a new sentence, and the initial “w” as a capital.

[4.] This instrument did not vest English and wife with a title to the property, but constituted them bailees, and made the bailment determinable by a demand, which was made before the commencement of this suit. If this bailment was illegal, under the decisions of this court, the administrator would be estopped from setting up a title in avoidance of it. — Pistole v. Street, 5 Porter, 64; Swink v. Snodgrass, 17 Ala. 653; Kavanaugh v. Thompson, 16 Ala. 817; Lawson v. Lay, 24 Ala. 184; Fambro v. Gantt, 12 Ala. 298; Farrow v. Bragg, 30 Ala. 261; Easley v. Boyd, 12 Ala. 684. But this principle cannot be understood as estopping an administrator from recovering property, after the expiration of the bailment, in perfect accordance with its terms. It may be that a recovery here could not be bad during the bailment, or in contravention of it. But there is no principle of law or right, which prohibits an administrator, who has made an illegal bailment of property, from regaining the possession of the property after the termination of the bailment.

[5.] Where an executor or administrator unlawfully detains, in his representative capacity, personal property, which had been previously detained in a similar manner by the testator or intestate, damages for the detention by the representative, as well as by the deceased, may be recovered in an action against such representative. We content ourselves by referring to Brewer v. Strong, 10 Ala. 961, and the cases therein cited, which, we think, fully sustain the position.

The judgment of the court below is affirmed.