Barclay v. Henderson , 44 Ala. 269 ( 1870 )

PETERS, J.,

(after stating facts as above.) — Upon a motion to dismiss for want of equity, the allegations of the bill are all admitted to be true. They are to be taken as facts, and complainant is entitled to the benefit of every legitimate conclusion that may be reasonably drawn from them.

At the death of Brown, his wife, now Mrs. Barclay, under the limitations of his will, became the owner of his estate just as he had owned it before his death. But upon her marriage with Barclay, her right to her personal estate was transferred to him by the effect of the marriage, and the use of her real estate passed in the same way, if she chose to assent to this, acquiescing in his possession without objection, and he chose to exert his right under the marriage. If, however, she did not choose so to acquiesce, she might, by bill in equity, compel the husband, before taking possession of her personal assets, to make provision and settlement for her benefit. But the husband was not bound to take possession of his wife’s personal property or the rents of her land. He might, if he ohose, decline to do either, and leave her estate with her, upon a dissolution of the marriage, as he found it on the first consummation of the marriage. If he and she assent to this, and act upon it during their whole marital life, it can not be said that he has ever acted upon his right to take possession of her property and hold it as his own, to the extent of his rights by marriage, during the coverture. If he does not do this, upon his death, her rights revive as they existed before the marriage, and the husband will be treated as he considered himself, and as she considered him, as her trustee of her estate in his hands at his death. — Hawkins v. Coalter, 2 Por. 436; Andrews & Bro. v. Jones, 10 Ala. 400, 401; Marsh v. Marsh, June term, 1869; Robison v. Robison, January term, 1870.

The allegations of this bill show such a case. The husband declined to take marital possession of his wife’s estate from his marriage to his departure from this life. He acted solely as her trustee. This was his intent and purpose, and she acquiesced in it throughout their marriage life. It would be a fraud upon her to permit this purpose to be defeated.

The bill was, therefore, properly filed, and there was sufficient equity to sustain it. It was improperly dismissed. The decree of dismissal is reversed, and the cause is remanded for further proceedings in the chancery court in conformity with this opinion, and in accordance with the law.

And the appellees in this court will pay the costs of this appeal in this court and in the court below.