Martin v. Foster's , 38 Ala. 688 ( 1863 )

STONE, J.

When the appellee intermarried with Mrs. Martin, he thereby became joined with her in the guardianship of her children by Mr. Martin, her former husband. Carlisle v. Tuttle, 30 Ala. 613-624. We know of no principle of law which denies to him the right to charge his wards a reasonable sum for their board. But neither this charge, nor the one tor their tuition fees, accruing, as these items did, during coverture, can come up in the settlement of Mrs. Foster’s estate. They are no charge against the collective estate, and can only be considered in adjusting the accounts between the appellee and the children.

[3.] Mrs. Foster, by her will, devised all the interest she had in the plantation in their possession, to Mr. Foster, her husband. She then bequeathed all the residue of her estate for the payment of all the debts and liabilities against her estate, and afterwards in trust for her three children, &c. Under this clause, it seems clear to us that Mr. Foster, in his settlement, should have been charged with the value of the use of the slaves for the two years after Mrs. Foster’s death, as so much in his hands which should have gone towards the extinguishment of her debts. Whether, in the after administration of this fund, there will not arise a question of personal trust which the probate court is incompetent to adjudicate, is a point not now before us. — See Billingsley v. Harris, 17 Ala. 214; Vincent v. Rogers, 30 Ala. 471.

[4.] Mr. Foster claimed, and was allowed, credits for several sums paid by him, during the coverture, on debts of Mrs. Foster, contracted before their marriage. There is no proof that these payments were made at the instance ■ and request of Mrs. Foster, but, so far as we can learn, they were gratuitously made. Under these circumstances, these credits should not have been allowed. — Williams v. Sims, 22 Ala. 512. But, probably, there is another reason for their rejection. Mr. Foster, as trustee for his wife, was, no doubt, in the possession of the rents, income, and profits of her estate. The estate was considerable, as the record informs us. Now, although he was not liable to account with her, her heirs, or legal representatives, for the rents, income, or profits; still, so far as he applied the income to the payment of her debts, or for her use, he has no claim against her or her estate. — See Rogers v. Boyd, 33 Ala. 175. These must be regarded as so much gratuitously paid out, or as expenses incurred by him in keeping up the estate, in the successful working of which he was largely interested.

Payments made by Mr. Foster, after he became executor, of debts due by Mrs. Foster, stand on a different footing. The law makes it his duty to pay these debts, if assets sufficient come to his hands; and such payments, rightfully made, are a charge against the estate in his hands.

What we have said will probably be a sufficient guide on another trial.

Reversed and remanded.