46 Ala. 170 | Ala. | 1871
— 1. I think it very clear, that the separate estate of Mrs. McGee in this property is not a statutory separate estate. The husband has none of the rights and privileges to which a husband is entitled, when the wife has what is called a separate estate under the Revised Code, or the statutes on this subject in existence at the time said Code was made. — Cowles et ux. v. Morgan, 34 Ala. 535. Her separate estate is created by the said ante-nuptial deed, and her rights and liabilities depend upon, and must be determined by it; in other words, it is a common law separate estate, and consequently may be charged with the payment of her debts in a court of equity.
2. If a feme covert, having a separate estate by an ante-nuptial settlement, after her marriage, enters into a bond, jointly with her husband, for the payment of her own debt, chancery will subject such separate estate to its payment, although nothing is said in the bond, directly, making the debt a charge upon the separate estate. — Forrest et ux. v. Robinson, ex’r, 4 Porter, 44, decided in 1836. The principle of that case has uniformly been recognized as the rule of decision in this court, from that time to the present. Bradford et ux. v. Greenway, Henry and Smith, 17 Ala. 797 ; Collins v. Rudolph, 19 Ala. 616; Collins v. Lavenburgh & Co.,
In the case of Forrest et ux. v, Robinson, ex’r, supra, as in this, the property embraced in the ante-nuptial settlement was the property of the wife before the marriage. In sueh a ease, it would be inequitable to permit her to settle her property to her separate use, for the support and maintenance of her intended husband and herself, and such children as they might have, in such manner as to withdraw and exempt it from the payment of her own debts, unless contracted for the support of the family. The chancellor, therefore, was mistaken in supposing it was necessary to be stated in the bill that the note was given for “ family supplies or maintenance.” And in the case made by the bill and answers, the note should have been decreed to be paid by the trustee, out of moneys in his hands belonging to the said trust estate.
Let the decree be reversed, at the costs of the appellees, to be paid by the trustee out of the moneys in Ms hands belonging to said trust estate, and the cause remanded for further proceedings in conformity with this opinion.
