30 Ala. 143 | Ala. | 1857
If tlie plea of the statute of non-claim is maintainable, the consideration of the most of the other questions in this case would be supererogatory. We therefore proceed at once to declare the law, as we understand it, in reference to that plea.
The allegation of the facts necessary to make the statutory bar applicable to the cause of action, is indispensable to the sufficiency of the plea. — 2 Daniel’s Ch. Pl. & Pr. 687; Maury’s Adm’r v. Mason, 8 Por. 811; Goodman v. McGehee, 15 Ala. 283; Grady v. Robinson, 28 Ala. 289.
If the presentation of the claim, within the time prescribed by law, is not negatived, a necessary averment is omitted, and the defense is not made out in the pleading; for, where a right depends upon a negative, its allegation is necessary, even though proof of it would not be required. Crafts v. Dexter, 8 Ala. 767 ; Carpenter v. Devon, 6 Ala. 718; McCauley v. The State, 26 Ala. 135; Walker v. Palmer, 24 Ala. 358; Carroll v. Malone, 28 Ala. 521.
The defendant’s administration commenced, and notice requiring the presentation of claims was given, in October, 1851; and on the 17 th January, 1853, when the Code became of force, eighteen months from the grant of administration had not expired. Prom the 17th January, 1853, to the commencement of this suit, on the 17th July, 1854, there rvas a period of precisely eighteen calendar months. Code, §§ 6 and 13.
By the 10th section of the Code, “all acts of a public nature, designed to operate on all the people of the State,” not embraced in that body of laws, are expressly repealed. The act of the 5th February, 1850, (Pamphlet Acts ’49-50, page 68,) which, is the statute of non-claim next preceding the Code in date, differs from the section of the Code on the same subject, in this, that the former requires a presentation within eighteen months from the administrator’s notice, and the latter (§ 1883) within eighteen months after the grant of administration. The act of 1850 is, therefore, not embraced in the Code; and we must either hold that it is repealed, or, pro hac vice, abrogate the clause of the 10th section of the Code above quoted.
The case of Rawls v. Kennedy, 23 Ala. 240, decides,
In McHenry v. Wells, 28 Ala. 451, it is decided, that the statue of non-claim contained in the Code has no retroactive operation, and that the time prior to its becoming the law cannot be computed in making out a bar under its provisions. Then, under the Code, a bar could not be effected in less than eighteen months after it went into force; and the eighteen months next after the commencement of defendant’s administration, or the giving of notice in October, 1851, was not the period, a failure to make presentation within which would, under the Code, effect a bar to the complainants’ cause of action.
We thus attain the conclusion, that neither by virtue of the act of 1850, nor by virtue of the Code, did an
The answer only negatives the presentation of the claim within eighteen months after the grant of letters of administration, and after giving notice by the administrator ; and we must decide, in accordance with the principles above laid down, that the defense is not made out in the pleading of the defendant.
It will not profit the defendant to concede that the eighteen months, making the period contemplated in the statute of non-claim, intervened between the day on which the Code became the law, and that on which this suit was commenced ; as to which, see Code, §§ 1883, 13; and Owen v. Slatter, 26 Ala. 547. The presentation within that period is not negatived by the plea. It is averred in the aiiswer, that neither of the complainants had ever applied to and requested the defendant “to render unto them an account,” &c. This is not sufficient; the complainants may have omitted to call upon him to render an account, and yet may have presented their claim to him. Indeed, we suppose as a matter of fact the claim was presented before the commencement of the suit, and it is probable an admission of that fact could be inferred from the answer.
The answer avers, that the claim of Mrs. Andrews to the slaves Joe and his wife and two sons, was never in any wise made known to the defendant, until an amended bill was filed. So far as these slaves are concerned, the object of the bill is a recovery of the specific property. To such a cause of action the statute of limitations has no application, as is decided in Locke v. Palmer, 26 Ala. 312. So that the averment of the non-presentation of that part of the cause of action avails nothing.
The objects of this suit are, to recover the income from personal property, consisting of slaves, alleged to have been the separate estate of Mrs. Andrews ; the hire of slaves purchased for Mrs. Andrews, by her deceased
It is contended, that a portion of the slaves belonging to Mrs. Andrews were received under the will of her grandmother, which did not by its terms create a separate estate; that her separate estate in those slaves results from the statute; and that, therefore, the husband would be entitled to, and his administrator could not be made responsible for, the income from those slaves. On the other hand, it is contended for the complainants, that all the property was derived under the will of Mrs. Andrews’ father, which by its terms created a separate estate. We do not go into the question thus mooted between the parties, because it may be conceded to the complainants, without changing the result, that the entire estate came by the will of her father, which created a separate estate.
Mrs. Andrews and her former husband lived together as husband and wife, and enjoyed a common support; the property of the wife and husband was mingled together; and the husband received the income from the wife’s separate property, with her knowledge, and without objection upon her part. For the income of the separate estate received under such circumstances, the husband was not accountable to the wife, as was settled in the case of Roper v. Roper, at the last term. See,' also, Weems v. Bryan and Wife, 21 Ala. 802; S. C., 25 Ala. 195.
The law constitutes the husband the trustee of the wife’s separate estate; but the trust is executed and completed at the death of the husband; and, in that contingency, the legal, as well as the equitable title, vests in her. — Powell v. Glenn, 21 Ala. 458; Comby v.
Wo think that a different rule must prevail, in reference to the slaArcs alleged to have been bought with the proceeds of the sale of complainant’s land, the title to which Avas taken in the name of Mrs. A.’s former husband. Chicf-JusticeDargansaid, in Comby v. McMichael, supra, that the courts would not cut down the title of a trustee to a life estate, or other less interest, in opposition to the language of the deed, merely because an estate in foe was unnecessary to the completion of the trust. But, where the instrument, by which the trusts are created, clearly contemplates that the title of the trustee must cease upon the performance of the trust, there the legal title must
There are four of the negroes, which the complainant has not received, and which she claims as having been purchased with the purchase-money of her land, and seeks specifically to recover. This claim is resisted by the defendant, and it becomes necessary for us to determine the controversy by reference to the pleadings and evidence. The bill avers, and the answer admits, that George F. Huekabee, the first husband of Mrs. Andrews, sold a tract of laud, in which she had a separate estate created by her father’s will, for five thousand and two hundred dollars, and received the money. The bill also avers, that this money was invested by George F. Huekabee in slaves for M& wife, the title to which he took in his own name as trustee for her. Among these slaves were the four above named, Joe and bis wife and two sons, which were bought for Mrs. Andrews, but are detained by the defendant. The answer admits, that three thousand four hundred dollars of the purchase-money of the land was invested in slaves; and avers that those slaves for which titles were taken as alleged in the bill were delivered to the complainant about the first of January, 1852, but
From a thorough examination and careful consideration of the testimony, endeavoring to reconcile its apparent inconsistencies, we attain the following conclusions: that the negroes Joe and his family were bought, not with the wife’s funds, but with the note of George F. Huekabee and his surety; that George F. Huekabee, doubting whether the slaves would be desirable to his wile, took the title in his name as trustee by 'mistake, and bought them for himself, intending, however, to permit his wife to take them, if she chose to do so, and to protect himself out of the separate estate against the note for the purchase-money ; that his death so quickly followed the purchase of the slaves, that the wife probably never had an opportunity to make her choice to take or not to take the negroes ; that during the brief interim between the purchase of the slaves and Huekabee’s death, when the election of the wife had not boon made, the slaves were spoken of with the want of precision characteristic of unguarded social intercourse, as having been bought for the wife; and that Huekabee, in the last hours of hia life, preferred that the title should be vested in himself, rather than that slaves of doubtful adaptedness to Ms wife’s purposes should he imposed upon her, or, it may he, rather than that she should have the slaves without an arrangement of the deficiency of the separate estate in his hands to pay the purchase-money.
We have already decided that, upon the death of the, husband, the legal title to the property, of which he was by law constituted the trustee, vested in the wife, and she had a right to sue, at law, in reference to such property or its hire; but the termination of the trust does not destroy the liability, in equity, for the trust money which went into the husband’s hands. There was an equitable liability of the husband to account with the wife for' the money received by him, which descended upon his representative; and this equitable debt, like any other, must bear interest against the administrator. In the case of Puryear v. Puryear, 12 Ala. 18, it was decided, that the wife could defend, at law, an action for money received by her under circumstances construed by the court to constitute a gift from the husband; but it was intimated that the rule would probably have been different, had the wife been compelled to sue the personal representative, as for a debt due from her husband.
Ve entertain no doubt, that the complainant, Mrs. Andrews, is entitled to recover in this suit the two hundred dollars belonging to the corpus of the separate estate, and interest on it from the death of G-eorge F. Iluckabee. She must also recover the eighteen hundred dollars of the proceeds of the sale of the land which was not invested in slaves. The reason why the husband is not accountable, under certain circumstances, for the
The judgment of the court below is reversed, and this court now hero renders the decree which the court below ought to have rendered, as follows: It is ordered, adjudged, and decreed, that the complainant, Harriet F. Andrews, recover from the defendant, Robert D. Huckabee, as administrator of the estate of George F. Huckabee, deceased, the sum of two hundred and fifty dollars, and interest on the same from the death of the said George F. Huckabee; and also, the sum of eighteen hundred dollars, with interest on one thousand dollars of that sum, from the 1st March, 1851,’ to the death of said George F. Huckabee, and interest on the entire eighteen hundred dollars, from the death of said George F. Huckabee; and also, reasonable hire for the slaves (Sam, Chaney, Louisa, and Mary Barnes) bought with the purchase-money of complainant’s land, from the death of said George F. Huckabee, until they were delivered to the complainant > and that the registrar in chancery for the'chancery court