17 Ala. 726 | Ala. | 1850
The facts of this case, so- far as they are necessary to a proper understanding of the questions involved, maybe thus stated: In December 1846, James B. Chambers was appointed by the Chancery Court of Perry county guardian of the persons and the estate of the four minor heirs of William J. McKerrell, deceased, whose names are Frances, William J., Thomas B., and Samuel McKerrell. At the time of the appointment of Chambers as guardian, an order was made by the chancellor, that he keep the estate, both real and personal, of all the minors together, and that distribution be made to each as they respectively should become of age, or to Frances at her marriage, should she marry before attaining her full age. It was further ordered, that upon the application of said minors as they became of age, or upon the application of Frances and her husband, should she marry before she became of age, the register should issue a commission to five discreet free-holders, who upon oath should allot and set apart to each heir or distributee, his or her share or proportion, and that they should make report of their proceedings and acts to said court. The order,
But it has been argued, that as the"interest of the wife was not separated from the interest of her minor brothers, that therefore herrfght was turned into a chose in action. To this argument we c'arinot assent. ‘ If One joint tenant, or tenant in Common of á chattel, when there has been no conversion by the other, cannot be1 considered'as‘an oivner in possession, neither could the other; and tbé mere fact, "that persona! property was héldiú ctimmon by several,' would'rédúcé the fight of all to‘ a
It is, however, again contended that because Frances, the deceased wife, was a ward of the court of chancery, and married’ without the knowledge1 or consent- of the chancellor, that therefore the marital rights of the husband did not attach upon her property in the -hands of her'guardian, and that her subsequent death determined all the interest -that’ he had in’ it. It: is true that when an infant female is a ward of the court of chancery, the court will take care:that she shall not marry without the consent of thé court; and it is usual for a recognizance or bond to be required of the guardian, that the infant shall not marry without :such leave; which, beyond doubt, would be forfeited, if the guardian sanctioned a marriage-that had taken place, without the consent • of the court. — 2 Story’s Eq. §§13,59. But whether the guardian was consenting to the marriage ®r not, the court has the power to commit- the husband, until he shall make a proper settlement upon bis wife; nor will it make any difference, that the ward- has arrived' at full age and’waLves her right to a settlement, for the court will protect her against her own imprudent acts. In the case of Stevens v. Savage, Stevens married a Miss Jeffrey, a ward of the court, uhdar' the following circumstances his addresses’ were favored by her-father in his life-time, and after his death, he and the infant ward were married with’the consent of all the family;’ yet the -chancellor committed him:for a contempt, arid he was only discharged upon making a proper settlement upon his wife. — 1 Yesey, 154. This authority of the chancellor over the husband, who mUy marry a ward of the court of chancery, without the sanction of the court, is fully sustained by the cases of Murch v. James,’4