Smith v. Whitfield , 71 Ala. 106 ( 1881 )

BRICKELL, C. J.

The share of the wife, as a distributee of the unsettled estate of Mary Bryan, in the hands of the administrator,. Evans, was a part of the corpus of. the statutory separate estate of the wife.-Smilie v. Siler, 35 Ala. 88; Sharpe v. Burns, Ib., 653. The husband has not power to assign or transfer -it, and it was incapable of transfer or assignment in any other mode than by instrument in writing signed by husband and wife, and attested by two witnesses, or acknowledged as the statute directs.-Smith v. Oliver, 31 Ala. 39; Whitman v. Abernathy, 33 Ala. 154. If the husband, by assignment or transfer, had alienated the distributive share, converting it into property of any other kind, the wife could have elected to take and hold such property. The election could not be asserted in a court of law, thereby drawing to the wife the legal title to such property. In a court of equity only could the election bo manifested, the husband converted into a trustee, and divested of the legal title. Until the election was manifested, and the equity of the wife declared and enforced by a decree, the legal title would reside in the husband.-Bolling v. Mock, 35 Ala. 727; Evans v. English, 61 Ala. 416.

The statutory separate estate of the wife vests in the husband as her trustee, and it is declared: “ The husband has power to receive property enuring to his wife, or to which she is entitled ; and his receipt therefor is a full discharge in law and equity.” — Code of 1876, § 2710. This power is most frequently exercised by the husband in reducing to possession the choses in action of the wife. When reduced to possession, as trustee, the husband has power, and it is a duty to invest the proceeds in other property, or to use them as may be most beneficial for the wife. If invested in other property, such property becomes the statutory separate estate of the wife. Marks v. Cowles, 53 Ala. 499.

The point of controversy in this case is, whether there was an assignment or transfer by the husband of a part of the distributive share of the wife in payment for the ' horse; or, whether there was payment of the price by a payment pro temto of the distributive share. The latter is the true character of the transaction. It was not intended that any part of the distributive share should be transferred to Davis, the vendor.. It was intended only that a credit to him upon his note, payable to the administrator, should operate a payment of the price of the horse, and a payment to the husband to that extent of the' distributive share of the wife. This was the transaction ip fact and in legal effect. The price of the horse was paid — there-was an exemption to the husband of all liability for it,'and a corresponding exemption to the administrator to its amount from all liability for the distributive share. By operation of law, the legal title to the liorse was invested in the wife — it was her statutory separate estate.-English v. Evans, supra. The case bears no analogy to that of Wilder v. Abernethy, 54 Ala. 644, in which the husband, carrying on business in the name of the wife, purchased goods on the credit of the wife, not using; the moneys or effects of the wife, and it was held, the goods were not the property of the wife.

There is no error in the rulings of the Circuit Court, and its judgment is affirmed.