McAllister's v. McAllister , 37 Ala. 484 ( 1861 )

A. J. WALKER, C. J.

The-complainant’s deceaséd husband removed from bis plantation, in 1851, to a town distant about five miles, and thenceforward until his death, in lo53, resided in the town ; drawing his supplies from the plantation, having no business save the superintendence of the plantation, and no -income except from the planta-' ¿ion. -The majority of the court- are of the opinion, that the plantation of the deceased was not, within the meaning of section 1359- of the - Code, “connected with the dwelling-house where the deceased most usually-resided next before Ms death," and that the widow was not entitled to the possession of the plantation until her dower was assigned hex. They flunk, that the same reasoning which would make the plantation so connected in this case, would -producé-the same-result if the planfcatioivwere a hundred miles-distant from the residence, and would give the widow the possession, as her-quarantine, of two or more plantations within a, few miles.- of the residence. They think, that to bold the plantation in this case to be within the statute, would be inconsistent with the spirits and intent'of the law, and would establish a precedent-which might, lead to most unjust and unreasonable consequences.. In would myself prefer-a different, conclusion, and I think the previous decisions-of? this court; sustain'the widow’s right to possess the plantation until her clow-er was assigned. — Pinckard v. Pinckard, 24 Ala. 250 ; Smith v. Smith, 13 Ala. 329.

[2.] The complainant had-fa right to- come into chancery to-recover damages for the detentiom-of her dower and the measure of her damages would be one-half the rent, (the deceased having left- no descendants,) from the husband’s death, until the dower was assigned. — Perrine v. Perrine, 35 Ala. 644 ; Slatter v. Meek, ib. 528 Smith v. Smith, 13 Ala. 329-336.

j"3.J As a defense to this suit, it is said by the defendant, that he carried on thé plantation, and from the income he discharged the debts of the estate, leaving the entire personalty to be divided ; that there was a large balance in his hands, after the payment of the debts- and expenses of administration ; and that one-half of this- balance was, under a decree of the probate court, paid to the complainant. The argument, we suppose, is, that.-the com? plainant, in having the income of the plantation appropriated to, the payment, of the. debts, of the estate, and the personalty- thus, saved from sale to pay, the debts, and in, receiving, one-half the balance of the income, has received-;, the benefit of, one-half the rent, of the land. The income-from the plantation was the product of the soil, the labor-, of the slaves and animals, the. implements.of husbandry¿ and the skill and-industry of the supervisor, un&istinguish-.. ably commingled. It- is not true, therefore, that the income stood to the,, complainant,, in the place of the rent*of the. land. It was the product of the commingled elements-, above stated, one of which-,was .the use of the land ; and to one-lralf the benefit of aü the others she was entitled as, a, distributee of the estate.. By virtue of a right altogether.distinct from her dower, she was entitled to her-distributive share, after the payment of debts and expenses, in* the product of all the agencies employed, except the use of the land ; and to one-half, that she was as dowress entitled. The doctrine of election obliges a party,.having inconsistent rights, to choose between them. No such inconsistent rights exist, here, between which a choice could have been., made. The complainant, could, not have given up the income derived from the land, or the benefit accruing to her from, the discharge of debts and expenses- out of it, without at the'same time yielding, up-her right as a dis-tributee, which she could not be required to do.

If, however, the executor in good faith cultivated the land, and the distributees have accepted the benefit offhis use of the land;, he is entitled to a credit out of the assets for the rent which maybe recovered from him by the complainant. — McCreliss v. Hinkle, 17 Ala. 459 ; Gerald v. Bunkley, ib. 170. And if, upon the recovery by the complainant of hen rents, it should be the case, that, with the charge upon, the estate thus superadded, the amount received by the complainant, as a distributee, should exceed her share, then the defendant would be entitled to recover the excess from her. — Sellers v. Smith, 11 Ala. 264. Should the defendant have such right against the complainant, we see no reason,why the balance should not be adjusted in this case ,- and if necessary,, the pleadings may be amended for that purpose.

Reversed and remanded;