Robertson v. Robertson , 147 Ala. 311 ( 1905 )

ANDERSON, J.

“A gift of personal property, made with intent that it shall take effect immediately and irrevocably, and fully executed by complete and unconditional delivery, is good and valid as a gift inter vivos, although at the time the donor is in extremis, and dies soon after. Moreover, a gift made in anticipation of death, but not conditioned upon that event, is a gift inter vicos, and not a gift causa mortis,v — 14 Am. & Eng. Ency. Law, 1014; Dresser v. Dresser, 46 Me. 48; Gilligan v. Lord, 51 Conn. 563; Adair v. Craig, 135 Ala. 332, 33 South. 902; Whitten v. McFall., 122 Ala. 619, 26 South. 131; Abney v. Moore, 106 Ala. 131, 18 South. 60; Gillham v. Mustin, 42 Ala. 366; Trawich v. Davis, 85 Ala. 342, 5 South. 83. The instrument transferring the bonds in the case at bar preserved the interest thereon to the donor for his life, but did not operate as a limitation upon a present transfer of the title, and no power was reserved to the donor to defeat or jeapordize the same.

While such a gift may operate in presentí and be valid and binding, the question that presents itself for our consideration in the case at bar is: Was it binding on the wife, and did the donor, Walter Robertson, have the lawful right to so dispose of his property and thus defeat her marital rights thereto? “It may be stated that at common law the husband, as against every person except his creditor, has a right to dispose of his personalty in any manner he thinks proper during his lifetime, and during the coverture the wife has no interest in the property, except so far as the husband may be liable for her support and maintenance. And even in jurisdictions where, by the common law, by custom, or by statute, the wife is entitled to a distributive share in the husband’s personalty, it is conceded that the husband has the power to dispose absolutely of his personalty during his lifetime'by sale or gift; and, if he reserves no right to himself, the transfer will prevail against the wife, though made to defeat her claim. But, according' to many authorities, if the conveyance or transfer be a mere device or contrivance by which the husband, not parting with the absolute dominion over the property during his life, seeks at his death to deprive the widow of her distributive share, it will be ineffectual, against her. In other jurisdictions, however, it is held that if the conveyance, whether voluntary or not, be not revocable by the grantor, it is not to be considered as a will in disguise, on the ground that he reserves to himself the possession and control of the property during his life, and it will not be set aside as in fraud'of the wife.” — 15 Am. & Eng. Ency. Law (2d Ed.) 834.

It has been held by a line of decisions that a wife has no vested interest in the personal estate of the husband. Cameron v. Cameron, 10 Smedes & M. (Miss.) 394, 48 Am. Dec. 759; Lightfoot’s Ex’rs v. Colgin, 5 Munf. (Va.) 42; Stewart v. Stewart, 5 Conn. 317; Dunnock v. Dunnock, 3 Md. Ch. 140; Small v. Small, 56 Kan. 1, 42 Pac. 323, 30 L. R. A. 243, 54 Am. St. Rep. 581; Padfield v Padfield, 68 Ill. 210; Jones v. Somerville, (Miss.) 28 South. 940, 84 Am. St. Rep. 627. That being the case, the husband can dispose of his personal property as he may see fit, and the wife cannot complain. This court became committed to this doctrine in the case of Ford v. Ford, 4 Ala. 142, wherein Justice Ormond, in defining the husband’s right to his personalty, says: “He has by law, during his life the most absolute and unqualified dominion over it. The only restriction which has been imposed on him in favor of his wife is in its disposition after his death by will. It is difficult, then, to conceive how a disposition of property, made in the lifetime of the husband, and to take effect immediately, could be fraudulent against the wife, as no right Avhatever vests in the Avife until his death.' Her title is derived, not from contract., but is vested in her by laAv, and has no existence whatever until his death.” We see no reason for departing from the doctrine aboAre declared, which has become a rule of property in this state.

It matters not that the grantor, Walter Robertson, charged the trustee with the payment to him of the interest on the bonds for his life, as it was not a will in disguise. It was an irrevocable disposition of the property conveyed by the assignment, by which the title passed immediately out of the grantor and vested in the respondents. It ivas therefore not testamentary in its character. — Ford v. Ford, supra; Jones v. Somerville, supra. We are of the opinion that the assignment of the bonds ivas not the result of undue influence on the part of F. H. Robertson.

.The decree of the chancellor is affirmed.

Tyson, Simpson, and Denson, JJ., concur.