Duncan v. Johnson

23 Miss. 130 | Miss. | 1851

Mr. Justice Smith

delivered the opinion of the court.

There is no pretence for saying that there had been a valid distribution of the estate of Leonard B. Richie, the former husband of the appellant, before that made in 1841.

It seems to be equally clear, that, before that distribution, Johnson and wife did not act upon the assumption that any distribution had been made, by asserting a right of property to any specific portion of the decedent’s estate which can bo regarded as a consummation of the general right of distribution, which vested in Mrs. Johnson on the death of her former husband in 1836. Up to the period of distribution, the legal title remained in the administrator; and, although Johnson, after his marriage with the appellee in 1837, resided on the plantation where the slaves were employed, it does not appear that he assumed their control or management. If, however, such had been the fact, it seems to be well settled, that it would not have had the effect to vest him with the title to the distributive share of his wife. Elms v. Hughes, 3 Ves. 155; Baker v. Hall, 12 Ves. jr. 497; Gregory's Adm’r v. Mark’s Adm’r, 1 Rand. 355; Wade v. Grimes, 7 How. 425.

As we have seen, Richie died in 1836; the appellee, his widow, intermarried with Johnson in 1837, who did not reduce into possession her distributive share of the decedent’s estate until 1846, after the statute of 1839, respecting the rights of married women, had gone into effect.

The principal point of controversy then is, whether Johnson, by virtue of his marriage and the distribution of 1841, acquired an absolute right to the distributive share of his wife, or whether it enured to her as her separate property.

This question, in Clarke v. McCreary, 12 S. & M. 347, was decided in favor of the wife. We have only to repeat our unqualified approval of the decision.

Johnson in 1838 purchased two slaves (Arthur and Rachael) with money belonging to the estate of Richie. It is alleged that they were purchased for the estate. In equity, they belonged to it. They were so regarded by him. They were embraced in the distribution, and fell to the lot of Mrs. Johnson. These, with the other slaves set apart to Mrs. Johnson, were determined by the chancellor to be the separate property of the appellee.

We affirm the decree.