Walker's Adm'r v. Walker's Adm'r , 41 Ala. 353 ( 1867 )

BYRD, J.

1. It may now be considered as settled, by repeated decisions of this court, that where an estate in personalty has vested in the wife under a will, and by the assent of the executor it has become a legal interest, and the possession is with the person in whom the precedent particular estate is vested, and no adverse possession is shown, such estate of the wife passes to the husband by virtue of his marital rights, at common law. There are expressions used in the opinions of this court, in the cases of Mason v. McNeill, (23 Ala. 208,) and of Hair et al. v. Avery et al., (28 Ala. 267,) and perhaps in other cases, which may militate against this doctrine as stated; but we conceive it to be fully sustained by the following decisions: Magee v. Toland, 8 Porter, 36 ; Pitts v. Curtis, 4 Ala. 350; Broome v. King, 10 Ala. 819 ; Chambers v. Perry, 17 Ala. 736; Gibson v. Land, 27 Ala. 117; Walker v. Fenner, 28 Ala. 367; Williams v. Avery, 38 Ala. 115. It is also settled, that, at common law, if afemme, covert is entitled to a distributive share of an estate, and she dies before the husband reduces it to possession, no title thereto vests in him, but it goes to her personal representative.—Hair v. Avery, 28 Ala. 267, and authorities therein cited. These propositions are stated as the result of the decisions of this court upon common-law principles, and not upon the statutory law of this State.

2. In the absence of any proof on the subject, we will presume that the common law is, and was, in force in the State of Georgia, and that there was no statute law in conflict therewith. When Matilda Walker died, these propositions were the settled law of this State, unaffected by any statutory enactments.

3. In this case, it does not appear from the evidence that the executor assented to the legacy, and delivered possession of the property to the tenant for life, before the death of Matilda Walker. The charge given by the court is equivalent to, and must be treated as, a demurrer to the evidence, and a joinder therein by the appellant.—Hollingsworth v. Martin, 23 Ala. 591. The court should not give such a charge, where the jury could legally find a verdict against the party in whose favor the charge was given.—Mims v. Central Bank, 2 Ala. 296. A demurrer to evidence admits every fact which the testimony tends to establish, or which the jury might properly infer from the testimony.

In this case, upon the points argued by counsel, the appellant introduced evidence, upon which the jury might have legally found a verdict in his favor. It devolved on the appellee to show, that the property bequeathed by the 3d item of the will went into the possession of the tenant for life before the death of Matilda Walker. Whether that would have been a good defense to this action, under the other facts of this case, we intimate no opinion, as counsel have argued this case upon the supposition, that the record showed that the tenant for life had obtained possession of the property, by the assent of the executor, before the death of the remainder-man. In such a case as this, the court should not have given the charge it did.—Henderson v. Mabry, 13 Ala. 713 ; Armstrong’s Executor v. Armstrong, 29 Ala. 538 ; White v. Hass, 32 Ala. 432 ; Memphis & Charleston Railroad Co. v. Bibb, 37 Ala. 699.

There are other questions, which might have been raised upon the evidence and the charge of the court; but, as they have not been argued, and the evidence may be different on another trial, we shall not notice them.

The judgment must be reversed, and the cause remanded.