Smilie v. Siler's Adm'r , 35 Ala. 88 ( 1859 )

R. W. WALKER, J.

1. Where material matters are stated in the bill, which, prima fade, are within the knowledge, information, or belief of the defendant, if in his answer he fails to deny them, or to express his belief of their falsity, and does not state that he cannot form any belief respecting their truth, they must be considered as admitted. — Grady v. Robinson, 28 Ala. 289. The complainant’s deceased wife was the sister of the defendants, and, prior to her marriage, lived on the same plantation with two of them; and, both before and after that event, resided in the same State with the other defendant. The answer clearly shows that all of the defendants knew of the marriage before the death of Mrs. Siler; but there is no express admission that it took place at the time alleged in the bill. Considering the relations between the parties, and the other circumstances referred to, it is but fair to presume that the time of the marriage was a fact of which the defendants had at least information or belief, if not knowledge; and the silence of the answer in reference to the allegation of the bill must be deemed an admission of its truth.

2. The bill alleges, that Stephen L>. Smilie, who was appointed administrator of his father’s estate, has never been finally discharged as such. The only discharge of the administrator set up in the answer, is one which is founded on the private settlement and division of the assets of the estate, made by the three defendants, in February, 1853, according to the written agreement attached as an exhibit to the bill. It is very clear that this private agreement between a part of the heirs-at-law, which does not even appear over to have received the sanction of the probate court, cannot be considered a final settlement of the estate, or a. legal discharge of the administrator. — Marshall v. Crow, 29 Ala. 279 ; Whitworth v. Hart, 22 Ala. 359; Hollis v. Caughman, 22 Ala. 482.

3. In Marshall v. Crow, 29 Ala. 278, it is said that, under the Code, (§ 1990,) the husband takes as distributee in all the transmissible estate of which the wife died the owner, whether in possession or not; in other words, that the husband is entitled to a distributive interest in all the property to which the administrator of the wife is entitled as assets of her estate. The 8th section of the act securing to married women their separate estates, approved February 13th, 1850, is substantially identical with section 1990 of the Code. — Acts ’49-50, p. 65.

The question now to be determined is, whether the wife’s distributive share in an unsettled estate is embraced by the other provisions of that act, and constitutes a part of her separate estate under it. While it is admitted that the language of the Code is broad enough to cover such an interest, it is insisted that the words of the act of 1850 are less comprehensive; that they only include such property or estate of the wife as may be said to be either “in possession, remainder, or reversion;” and consequently, that choses in action are not within the influence of that act. The argument in support of this position is founded upon the words of'the first part of the first section of the act — “ If any woman, before and at the time of marriage, shall have and own any property or estate, whether the same be real, personal, or mixed, in possession, remainder, or reversion, all such estate and property shall betaken,” ■&e.

We will not pause to comment on the peculiar phraseology here employed. The words with which the section opens are certainly of the most comprehensive character— u If any woman shall have and own any property or estate;” and even if there were nothing in other parts of the act to explain the sense of the succeeding’words, it may well admit of doubt, whether those succeeding words would not be considered as intended, not to qualify and restrict the meaning of the terms previously used, but simply to exclude a conclusion which might otherwise be attempted to be drawn from them.; namely, that the estate or property referred to by them did not embrace any property except such as was in possession of the wife. Whatever doubts might exist if this part of the first section were standing by itself, are dissipated upon an examination of the entire act. The latter clause of thefirst section is in these words: “And no husband shall, by his marriage, acquire a right to the property which his wife hacl upon his marriage, or which she may after acquire by descent, gift, demise, or otherwise, except as hereinafter provided for.” The 10 th section of the act provides, “ that the word property, as used in this act, shall be construed, wherever it occurs, to include all moneys, stocks, credits, or other-effects.” Broader or more comprehensive laDguage it would be difficult to fiad. The only interpretation to be put upon it, when considered in connection with the other provisions of the law, is, that the word properly, as used in the act, not only embraces any estate or property, real, personal, or mixed, whether in possession, remainder, or reversion, but that it also includes “ all moneys, stocks, credits, or other effects.” The words employed in the Code are not more capacious than these terms ; and we have no doubt that every description of interest, which, under the Code, would constitute a part of the wife’s separate estate, would also belong 'to her separate estate under the act of 1850.--See Campbell v. Prescott, 15 Vesey, 507; Hogan v. Jackson, Cowp. 299; Hardy v. Boaz, 29 Ala. 168; 1 Bouv. Law Dict., Credits, Effects.

Decree affirmed.