Connolly v. Mahoney
103 Ala. 568
Ala.
1893
Check Treatment
HARALSON, J.

1. The act of 28th February, 1887, carried into the Code of 1886, is a complete revision of the old, and the institution of a new, system of law regulating the rights and liabilities of husband and wife. It prescribes, or rather creates, two kinds of separate estate, — equitable and statutory. Section 2351, defines these two estates. It reads : “All property of the wife, whether acquired by descent or inheritance, or gift, devise , or bequest, or by contract or conveyance, or by gift from a contract with the husband, is the separate property of the wife within the meaning, and is subject to all the provisions of this article, saving and excepting only such property as may be conveyed to an active trustee for her benefit.’ ’

2. Construing this act, we have held, that the distinction which had theretofore been made and preserved between statutory and equitable separate estates, has been abrogated, except in cases where the property is conveyed to an active trustee, for the wife — a trustee having some duties to perform in reference to the prop-*573erty — and that, with this single exception, equitable separate estates are now statutory. — Rooney v. Michael, 84 Ala. 589; Maxwell v. Grace, 85 Ala. 579 ; Marshall v. Marshall, 86 Ala. 389.

3. To make these sweeping changes in the law, to abolish the husband’s trusteeship of statutory estates of the wife theretofore existing, and thereby vest her with the legal title, and to bring all such estates under the operation and dominion of the new system, there existed no legislative incapacity. This trusteeship and these estates were created by statute, and might have been abolished by statute, the only prohibition on legislative authority in such connections being, that no law can be given a retroactive effect, so as to interfere with the rights which have become vested in third persons, or with any right created by contract. — Memphis & C. R. R. Co. v. Bynum, 92 Ala. 338; Ramage v. Towles, 85 Ala. 589 ; Rooney v. Michael, supra; Jordan v. Smith, 83 Ala. 301.

4. The only question we need consider in this case, as presented by the counsel for appellant, is, whether under the provisions of the married woman’s law of 1887, (Code, §§ 2341 to 2356, inclusive), the husband is entitled to distribution in the estate of his wife who died intestate, and to the use of her realty during life. We have quoted above, section 2351 of the Code, which makes all the property of the wife, however acquired, her separate property, subject to all the provisions of the Code, saving and excepting, only, such property as may be conveyed to an active trustee .for her benefit. This provision covers the property held by Mrs, Mahoney at her death. She did not hold it by the intervention of an active trustee ; a condition necessary to withdraw it from the dominion of the said act of 1887, as found in the Code. Nor does the contract under which she acquired it, vest in her any right, which, under constitutional guaranties, relieves it from the operation and effect of that act.

5. Section 2353 of the Code provides : “If a married woman, having a separate estate, die intestate, leaving a husband living, he is entitled to one half of the personalty of such separate estate absolutely, and to the use of the realty during his life.”

Here then, we have an estate acquired by purchase "by *574the wife during her life, which is her statutory property, under and subject to the provisions of the Code — not held by an active trustee for her benefit — and the wife dies leaving a husband and children. Such a condition is met, as brings her estate for distribution under said section 2353 of the Code.

It is unnecessary to consider the question of the common law right of curtesy of the husband in the lands of his wife.

There was no error in overruling the demurrer to the bill.

Affirmed,