73 Ala. 123 | Ala. | 1882
— The present bill is filed by Mrs. Virginia Z. Allen, and the trustee of her separate estate, for the main purpose of charging the estate of her deceased husband with the rents, income and profits of such separate estate collected by the husband during his life-time. The property, from which these rents and incomes accrued, is claimed by the wife under the provisions of a marriage settlement by which the husband, Robert Allen, conveyed it to her trustee, Terry, “ for her sole and separate use, benefit and behoof.” There is no controversy about the fact that the words used in the conveyance create in the wife an equitable separate estate, as distinguished from a statutory one.- — Jones v. Reese, 65 Ala. 134; Miller v. Voss, 62 Ala. 122. The powers and rights of the wife over such an estate, in a court of equity, have been uni
The rule as to the rents, income and profits of the wife’s separate estate of this character is equally well settled by the past decisions of this court. She is entitled to receive and control them herself, free from any interference of her husband ; but she may give them to the husband, as she may to any other person, under her general power of disposition. Hence, it haS been held, that, if the husband, while living with her, receives such income and profits, it will be presumed, in the absence of an express dissent on her part, that they were received by her consent, and they will be regarded as a gift to him. Gordon, Rankin & Co. v. Tweedy, 71 Ala. 202; Roper v. Roper, 29 Ala. 247; Andrews v. Huckabee, 30 Ala. 143. This was the settled doctrine of the English courts of chancery; and from it followed the mere corollary, that, where such gift was express or implied, the wife was precluded, after the death of the husband, from charging his estate with what he had received. — Pawlet v. Delaval, 2 Vesey, sr., 663; Milnes v. Busk, 2 Vesey, jr., 488.
• It is insisted, however, by appellee’s counsel, that the marriage contract itself must be construed' to put a restraint upon the wife’s power of disposition of the income and profits, as well as of the corpus of the property in question ; and that neither the one, nor the other could be disposed of by her, during her life, unless by instrument of writing, signed by her jointly with her trustee. •We do not concur in this construction of the nuptial' settlement. Conceding that the particular mode of disposition specified is exclusive, and negatives the exercise of any other mode, we think it applicable only to the corpus of the property, and not to the rents, income and profits, at least, when in the form of money. The property is conveyed to Mrs. Allen’s trustee, for her sole and separate use, with the power to her to possess, use, control and enjoy the same, and the proceeds and profits thereof, in such way and manner as she may deem fit and proper, and with power to her to dispose of the same, or any part thereof, either by transfer in writing, or deed of conveyance, during her life, or by last will and testament ; and if disposed of by her during her life, her trustee shall join witli her in the transfer or conveyance.” The corpxis of the property consists of certain improved real estate in the city of Birmingham, Alabama, and certain stocks in the Eagle
This view is in harmony with the construction put by this court upon our statute imposing restrictions upon the power of married women to dispose of their statutory separate estates. It can not be supposed that the section of the Code, recpiiring the sale or conveyance of such species of property to be made by the husband and wife jointly, “by instrument of writing, attested by two -witnesses,” has any reference to money which is a part of the wife’s statutory separate estate. — Castleman v. Jeffries, 60 Ala. 380, 391; Marks v. Cowles, 53 Ala. 499.
We think the chancellor erred in charging the estate of the husband with the moneys collected by him during his life-time, belonging to the rents, income and profits of Mrs. Allen’s, separate estate. The fair inference from the evidence is, that they were used by him in support of the family. At any rate, in the absence of the wife’s dissent, the law raises the presumption of a gift to him by her'.
The decree of the chancellor is reversed, and the cause is remanded.