Horton v. Hill, 138 Ala. 625

Horton v. Hill

138 Ala. 625 | Ala. | 1903

TYSON, J.

The matter of controversy in this cause involves the right of the complainant as administrator to have certain debts which he claims to be due to him as an individual paid out of the appellant’s share of the proceeds of the real estate sold by him, for partition in his representative capacity under an order of the probate court. The order for the sale of the lands was obtained long after the debts sought ■ to he charged against the appellant were contracted. In other words, at the time they are asserted to have been made, the money, arising from the sale of the real estate, was not in the hands of the complainant as administrator or *629otherwise. I-Iis right, therefore, to have them paid out of this fund must necessarily depend upon a contract between the complainant and the appellant. It is, therefore, unlike a case where ■ an administrator having funds belonging to an estate distributes a portion of them to a distributee entitled thereto without an order of the court. In that case the administrator has simply parted with money which belonged to the distributee and, of course, upon finál settlement would be entitled to a credit for it. And his right to the credit in no wise depends upon a contract, involving a promise to him as an individual on the part of the distributee, that he shall be re-imbursed out of the future funds that may come into his hands.

Mere, the complainant, as an individual, extended certain credits to the appellant upon the faith, we may assume, that at some future day, he would be paid out of her interest in her father’s estate. And it may be that Mrs. Horton, the appellant, at the time the debts were created, made an express promise that they should be so paid. But whether she did or did notj complainant’s right to be paid must, as we have said, depend upon her contractual liability to him for the debts he now seeks to enforce against her property. These debts are evidenced by open accounts which he claims were made-with him as an individual for money loaned, and goods, wares and merchandise sold by him to her. They extended over a period of ten years, • beginning with the year 1889 and ending with the year 1898. During this entire period except from Januáry, 1889, to May 1st of that year, appellant was a married woman and, therefore, under the disability of coverture. From the date of her marriage to the date of the adoption of the present Code, February 17, 1898, she was without power to make any contract that would bind her separate estate without the assent or concurrence of her husband expressed in writing. It is affirmatively shown by the record that no assent of her husband in writing was ever given that she might contract these debts, nor did he ever express in writing and file in the office of Hie Judge of Probate his consent to her engaging in *630business. Any contract she may have made, within this period, either express or implied, to pay these accounts is invalid, and unenforceable either in a court of law or equity. — Sections 2341, 2345 and 2350 of Code of 1886; Strauss v. Glass, 108 Ala. 546. And her subsequent acknowledgment of her liability in writing made on the 5th day of January, 1899, and her agreement embodied in the same instrument that they should be valid offsets against her interest in the estate, although signed by her and her husband, shown to have been made without any new consideration, is without any legal efficacy t ■> bind her in so far as the accounts are concerned made between the date of her marriage and February IT, 1898. Thompson v. Hudgins, 116 Ala. 93.

Among the accounts which Mrs. Horton ackn owledges her liability for, a number were held by complainant against her husband for articles, etc., obtained by him. However, it only 'becomes necessary to deal with the account- which the complainant exhibited to her against her husband for articles obtained during the year 1898, afta.- the 17th day of February of that year, since what we have said above disposes of ail others. As to this account, we find, as a fact, that it was her husband’s and not hers. Her acknowledgment of liability for it and her agreement that it should be a set off against her lands or the proceeds that might subsequently arise out of a sale of them, is, nothing more nor less, in legal effect, than an undertaking by her to become a surety for her husband, and therefore, void. — Section 2529 of' the Code, 1896.

This disposes of all the matters involved in the accounts attempted to be enforced by complainant except those items obtained by her during the year* 1889, prior to the date of her marriage, aggregating the sum of |93.71, and the items on the account against her for the year 1898, amounting to $5.84. Her agreement, above referred to, bound her so far as these items were concerned, and as to them we do not doubt the power of a court of equity to enforce it, the statute of limitations not being pleaded as a bar to the items first above mentioned. *631Slie should., therefore, he charged with these two items, with the interest thereon.

' The register in stating the account ascertained Mrs. Horton’s share in the estate to he $2,019.94, and charged her with the full amount of the accounts claimed by complainant against her and her husband, aggregating the sum of $2,110.58, bringing her out in debt to the com-, plainant in the sum of $90.64. To his report, Mrs. Horton reserved exceptions, raising the points we have discussed, which the chancellor overruled. Eliminating improper charges allowed against her in the making up of the account, instead of there being a balance in favor of complainant, the balance should have been in her favor in the sum of $1,820.11.

The case of Hollingsworth v. Hill, 116 Ala. 184, relied upon by both the register and chancellor as controlling and decisive of the question here presented, is wholly inapplicable. The decree below will be reversed in so far as this appellant is concerned, and one will be here entered in her favor against the complainant as administrator in the sum of $1,820.11, with interest thereon from the 28th day of July, 1902, the date of the chancellor’s decree confirming the rigester’s report.

The exceptions to the register’s report do not sufficiently i*aise the question of the correctness of the credits allowed to complainant as administrator out of the distributive share of Mrs. Stewart,- wife of the intestate. We must, therefore, decline to pass upon them. Campbell v. Claflin, 135 Ala. 527.

Reversed and rendered.