Hendricks v. Peavy , 78 Miss. 316 ( 1900 )

Calhoon, J.,

delivered the opinion of the court.

Mrs. Peavy sets forth in her bill in chancery that ■ her late husband managed her farming operations and her public cotton gin and mill, and put the proceeds to his own credit in a bank, and made a will giving what he had to Mrs. Hendricks, and died, but that the money was, in fact, not his, but her own. The bank was made a party, and, by consent, put the money in' court to be fought over.- Mrs. Hendricks demurred on the ground that there was no averment in the bill that the money was derived from complainant’s property within one year next preceding Peavy’s death, and the demurrer was overruled. Code, § 2292, providing that neither the husband nor his representatives shall be accountable to his wife for the income or profits of her estate after the expiration of one year from the receipt of such income or profits, has no bearing whatever on this case. This is not a bill for accounting, and seeks no personal decree against the estate of the husband. It simply asks that her money be decreed to be her property, and not the property of her husband’s legatee. The wife has the same right to her money, as against the husband in his lifetime and volunteers under him, and as against his donees by will, that she would have had to her horse, whensoever appropriated. If she can find the money or the horse, it is her right to have it, the husband, in such case, being the trustee for the wife.

Affirmed, and sixty days given appellant to answer 'bill.