Bolman v. Overall , 86 Ala. 168 ( 1888 )

SOMERVILLE, J.

In Bolman v. Overall, 80 Ala. 451, we decided, that the paper executed by Mrs. Lohman on December 1st, 1881, in the form of a will, and delivered by her to Mrs. Bolman, might constitute an irrevocable contract, binding on the separate estate of the maker, or testatrix, provided such estate should be proved to be equitable, and not statutory. The bill being one in the nature of specific performance, to enforce a trust created by contract, and Mrs. Lohman, the testatrix, being a married woman, she could not bind her statutory separate estate, so as to charge it by such a contract.

The only question now before us is as to the nature . of Mrs. Lohman’s separate estate, whether equitable or statutory. The chancellor decided that it was statutory, and that, for this reason, it could not be charged by the wife’s contract. In this conclusion we fully agree.

We are inclined to the view, from the testimony, that Mrs. Lohman came into possession of the great part of her property by inheritance from her first husband, Jacob Lohman, whom she married in 1844, and resided with until the date of his death, in 1855, or 1856. She remained a widow until 1862, or 1868, when she married one Stikes, who did not survive longer than a month or two before he died. She afterwards married one Kraft, in 1865, and he also died in the year 1886. She lived apart from Kraft most of the time, and never assumed his name,, always being called by the name of Lohman, that of her first husband.

The established rule is to regard presumptively all property owned by a married woman, in this State, as her statutory separate estate, until the contrary is proved. If it is asserted to be equitable, the onus of proving this fact is cast on the one who asserts it. — Steed v. Knowles, 79 Ala. 446; Patterson v. Kicker, 72 Ala. 406.

There are two reasons given why it is contended this presumption should be rebutted in the present case: (1.) Two deeds are introduced in evidence; the first from one Poster to Mrs. Lohman, executed in June, 1875; and the other from one Brown to her, dated in September, 1862, each conveying a piece of real estate to her sole and separate use, in such a manner as to create in her an equitable separate estate as to this particular property, on the face of the papers. (2.) The testimony shows that Kraft and Mrs. Lohman, although not divorced, lived apart; and it is insisted that he released, by way of gift to her, her earnings accumulated by carrying on a small mercantile business, and in such manner as to create in her an equitable separate estate.

The money or funds, however, used by Mrs. Lohman in purchasing this property, we are satisfied from the evidence, was her statutory separate estate; and she had no right to change in any such manner the character of her estate, so as to make it equitable. The implication as to the nature of the estate, imputed presumptively by the form of these deeds, was therefore rebutted by the proof in the case. — Loeb v. McCullough, 78 Ala. 533; Parker v. Marks, 82 Ala. 548.

The law does permit the husband, it is true, to release the wife’s earnings to her by way of gift in such manner as to create in her an equitable separate estate, good as between the parties, where the rights of creditors do not intervene. But it is held that the evidence of such gift must have been clear, and it must be made apparent that the husband intended to divest himself of all right to such earnings, and to set them apart to the wife. “The essence of the whole transaction,” as observed in Carter v. Worthington, 82 Ala. 334, “is the assent of the husband, clearly and satisfactorily manifested; and this may be shown by evidence that the husband permitted the wife to carry on a trade or business in her sole name, and on her sole account, without any participation or interference on his part.” The testimony fails entirely to show that Kraft ever voluntarily relinquished his marital rights in any of his wife’s property, or permitted her to carry on trade under such circumstances as to indicate his intention to release to her anything she earned by way of gift. She seems to have forced him to leave her household, because of the fact that he persisted in attempting to assert his marital rights in her property. The very existence and amount of this property she sedulously concealed from his knowledge, as far as she was able. The only occasion he ever had to assert his rights, he did so, by collecting the interest on certain money loaned to Mrs. Bolman, the existence of which came to his knowledge by the accident of litigation in which the money was involved. Bolman v. Lohman, 74 Ala. 507; Bolman v. Lohman, 79 Ala. 63; Kraft v. Lohman, 79 Ala. 323.

We fully concur with the chancellor in the view, that the receipts given by Kraft to Mrs. Bolman, for the interest on the loaned money, were not intended to operate as a relinquishment of his marital rights in any of his wife’s property, other than the two thousand dollars loaned to Mrs. Bolman, which was secured by mortgage. In collecting the interest on tbe debt, which was itself the highest assertion of bis marital rights as trustee of bis wife’s statutory separate estate, be only ratifies the agreement wbieb bad been made between Mrs. Lobman and Mrs. Bolman, as contained in tbe body of tbe mortgage; by wbiob it was stipulated that Mrs. Bolman and her two children were to become entitled to tbe mortgage debt, in tbe event sbe survived Mrs. Lobman, who was tbe mortgagee. Tbe receipts make this plain by reference to “tbe agreement and mortgage,” wbieb bad been set ont in Mrs. Lokman’s bill seeking to foreclose tbe mortgage, then pending in tbe Mobile Chancery Conrt. Bolman v. Lohman, 79 Ala. 63, 67.

The decree of tbe chancellor, in our opinion, is supported by tbe testimony, and is affirmed.