Harris v. Harris

71 Ala. 536 | Ala. | 1882

BRICKELL, C. J.

The statute (Code of 1876, §§ 2715-16) excludes from dower and distributive share in the estate of the husband a widow, having at the death of her husband a separate estate of equal or greater value than such dower and distributive share; or, if it be of -less value, requires that in the computation of the dower and distributive share, it shall be deducted. The separate estate to which the statute refers, is the estate created by the constitution and statutes, and not an equitable estate, an estate which is made separate by the terms of its creation.—Smith v. Smith, 30 Ala. 642; Huckabee v. Andrews, 34 Ala. 646.

It is not denied that the deed executed by Berry, conveying the house and lot to the intestate, Harris, as trustee for his wife, by its terms created an equitable separate estate — that it clearly and unequivocally excluded the marital rights of the husband, and limited the estate to the sole and separate use of the wife. The point of contention is, that as the money employed in the purchase, and forming the consideration of the conveyance, was of the legal or statutory separate estate of the wife, the house and lot of necessity, without regard to the terms of the conveyance, became likewise her legal or statutory estate, and its value must be computed in estimating her dower and distributive .share in the estate of her deceased husband. The argument is, that the statutory estate of a married woman, without the intervention of a court of equity, can not be converted into an equitable separate estate. This question was the subject of patient and deliberate consideration in Turner v. Kelly, and Masson v. Kelly, 70 Ala. 85; and we affirmed that the husband could renounce the trusteeship of the legal estate of the wife and all the privileges incident to it, as he could have renounced all his marital rights at common law. The effect of such renunciation is precisely the same as was the effect of his renunciation of his common law rights; the property remains the property of the wife— it is her equitable separate estate. The statute or the constitution can not intervene, for their field of operation is to intercept the marital rights of the husband, and these do not attach, because the husband renounces them. The husband investing money, the statutory separate estate of the wife, as it was his-duty to invest it, could elect whether the investment should be made in the name of the wife, continuing the character of the estate, or whether the investment should be made in the name of himself, or of a stranger, as a trustee, to hold for the sole and separate use of the wife. In making an investment of the latter kind, he alone is stripped of rights and privileges, the-claims of creditors who had previously supplied the family with necessaries not being involved. The conveyance creating an equitable separate estate in the wife, the value of the house and lot is not to be computed in ascertaining her dower and distributive share.

The transfer of the policy of insurance was a simple gift from the husband to the wife. At common law it was void, because of the -unity of husband and wife and the incapacity of the wife to take and to hold chattels, or choses in action, or stocks, independently of the husband. In a court of equity, the gifts of chattels, or the transfers of choses in action, or of stocks, made by the husband to the wife were supported; and they were supported upon the presumption that they were intended for her separate use.—Mc Williams v. Ramsay, 23 Ala. 813; Williams v. Maull, 20 Ala. 721; McMillan v. Peaooclc, 57 Ala. 127. As the transfer of itself created in the wife a separate estate, an estate not made her separate estate by the constitution or the statute, it is an equitable estate, and the statute does not require that it should be taken into the computation in estimating her dower and distributive share. This case is-clearly distinguishable from Williams v. Williams, 68 Ala. 405, in which the policy was taken out in the name of the wife as-sole beneficiary, right and title vesting in her by the policy itself,, and not by a transfer or gift from the husband.

We find no error in the decree of the chancellor, and it must be affirmed.