Bradley v. Murray , 66 Ala. 269 ( 1880 )

SOMERVILLE, J.

There was no error in excluding from the jury, as evidence, the act of the legislature for the-relief of Mrs. Bradley, approved December 15, 1873. The action is brought for the purpose of subjecting to liability her separate estate held under the statute, for “ articles of comfort and support of the household,” which are alleged to be “ suitable to the degree and condition in life of the family.” Code, 1876, § 2711. The purpose of its introduction was, to show that the property described in the complaint was not held by her as her statutory separate 'estate. The act in question did not affect' the status, or tenure of the wife’s property, in this particular, except pro hac vice. It only authorized her to mortgage such estate, with the advice and consent of her husband, for his debts, as if she were a femme sole. — Sess. Acts 1873, p. 149. The property owned by the wife is still recognized in the act itself, as “ her separate estate under the laws of this State.” It was designed simply to confer a power in reference to it, which she did not possess without express legislative authority. It did not make her a free-dealer, nor confer the right to manage for herself her own estate ; nor did it interfere with the husband’s rights as trustee of such estate, in any manner whatever, as was the case in Halliday v. Jones, 57 Ala. 525, where a special act of the legislature was held to take the wife’s property out of the operation of the general laws relating to married women’s statutory separate estates. The power given could not be exercised, and was a mere dead letter, without the advice and consent of the husband, and, therefore, could not exclude any of his marital rights conferred by law.

The charge given by the court, at the request of the plaintiff, in reference to the description or appropriation of payments made by the defendants, was incorrect. The common-law rule is, that where there is a running account, with sundry items of debit and credit, in the absence of any specific appropriation, the credit will, ordinarily, be applied to the discharge of the items of debt antecedently due, in the order of their precedence on the account; but even this rule has been held to vary with circumstances. — 2 Greenl. Ev. § 533. And a peremptory rule now prevails, by express legislative enactment. Section 2091 of the Code (1876) provides, that “ when payments are made, the interest due is first to be paid, and the balance applied to the payment of the principal and the court should have so charged the jury.

The condition in life and social position of the husband, and the value of his estate, were proper criteria by which the common law measured the extent of his liability for necessaries furnished the wife.—Cunningham v. Irvin (7 Serg. & Rawle), 10 Amer. Dec. 458, 462, and note; Eskridge v. Ditmars, 51 Ala. 245. Under the statute, however, the articles of comfort and support furnished may be “ suitable to the degree and condition in life of the family.,’ This rule would have proper regard, not only to the rank and fortune of the husband, but also to those of the wife, including the value of his property as well as that of her statutory separate estate. Mitchell v. Dillard, 57 Ala. 317, 320; O’Connor v. Chamberlain, 59 Ala. 431, 435. The value of the wife’s estate may, therefore, become very material, and the proof of it very necessary, in order to authorize a recovery for many articles of family supply, and of comfort and support of the household. In the case at bar, the account sued on contains many such; and had the charges asked on this point been limited to them, they should have been given. But it also contains some others, so strictly coming under the head of necessaries, as to constitute a charge upon the wife’s property held under the statute, regardless of its value over and above lawful exemptions. There was, for this reason, no error in refusing to give the fourth charge requested by the appellant.

The fifth charge requested should, however, have been given. Pipes, tobacco and cigars, are too clearly without the pale of the statute, to require discussion. Nor do we think that newspapers come within its provisions, under the rigorous construction given to it in the past decisions of this court. It has been repeatedly held, that “necessaries, for which the husband would be liable at common law in invitnm, is the extent of the liability of the statutory estate.”—Lee v. Campbell, 61 Ala. 12, 16. And while this term is not to be restricted to such articles as may be indispensable, it can not be construed to include mere luxuries. It has been usually held to include “food, drink, clothing, washing, physic, instruction, and suitable residence” (St. John’s Parish v. Bronson, 40 Conn. 75; S. C., 16 Am. Rep. 17); the nature and character of which must vary with the degree and condition in life of the family. Eskridge v. Ditmars, 51 Ala. 245, 253. In Lee v. Campbell (61 Ala. 12, 16), -it was said by Brickell, C. J., that “ the' support, the maintenance of the household, and not its comfort only, must be considered, in ascertaining the existence of that liability.” It was held, in that case, that a smokehouse, carriage-house and fencing, did not come within the meaning of the statute. So with blinds, doors, window-sashes and window-glass, used in completing a house on the wife’s lot, even where the husband is insolvent (Lobman v. Kennedy, 51 Ala. 163); and a pleasure carriage has been held to be a luxury, rather than a necessary (Eskridge v. Ditmars, supra).

It may be seriously questioned, whether the past decisions of this court have not placed a construction on this statute not sufficiently liberal; but a proper regard for the doctrine of stare decisis forbids any disposition on our part to unsettle it. Guided by this construction, we are of opinion, that neiospapers do not come within that class of articles, for the payment of which a married woman’s separate estate under the statute can be held liable to subjection. — 3 Wait’s Act. & Def. 652.

The judgment of the Circuit Court is reversed, and the cause remanded.

Brickell, C. J., not sitting.