Johnson's Adm'r v. Johnson

33 Ala. 284 | Ala. | 1858

WALBLEB,

J.-—-In another case between the same-parties, we decided, at the present term, that Mrs. Jemima Johnson did not take a separate estate un der the will of her deceased father, George Phillips. That decision establishes the right of the appellee, ¥m. Johnson, to retain all the money paid to him, in the- lifetime of his deceased wife, on account of her interest as a legatee in the debts due to her deceased father. It also overthrows the argument in favor of the appellant’s right to recover the other money in controversy, so far as it is based upon the idea of a separate estate in Mrs. Johnson. There are two distinct classes of funds, which were received by the appellee, after the death of his wife, from the executors of George Phillips, deceased. One class embraces the money derived from the collection of the debts due the deceased.. The other embraces the money derived from the sale of the lauds, in which the widow of George Phillips had a life estate. The rights of the parties in reference to-these two different classes of funds must be separately considered.

At the division, had within a year after the testator’s death, the notes and accounts belonging to the testator’s estate were left undivided, and they were placed in the hands of one of the executors by the others, who was to collect the same, pay off' the debts of the estate, and divide the remainder among the legatees. The legacies were assented to by all the executors, previous to "December, 1885, when the division was had. The executor, from time to time, as he made collections, paid over to the aj>pellee, on account of his wife’s legacy. We have already decided, that the plaintiff had no right to recover the money paid to the appellee during his wife’s lifetime, because, as to it, there was a plain*and complete reduction to actual possession during the coverture.

As to the money received by the husband after the wife’s death, it does not appear that any of it was collected- and in the hands of the executor before her death. We think the probability is, that ail the money received by the husband after the wife’s, death was collected after her death. We therefore leave undecided the question as to tbe rights of the parties in any money collected by the executor before the death of Mrs. Johnson, and after-wards paid over to her husband.

As to money, received on the notes and accounts, which remained uncollected at the death of Mrs. Johnson, and which was paid to the executor after her death, and then by the executor paid to Johnson, we decide that the marital rights of Johnson never attached.

The notes and accounts were but choses in action, in which the defendant’s (appellee’s) wife had an interest. If she had been the exclusive owner, and the husband had had actual possession of them, they would have gone upon the wife’s death to her administrator; for it is settled law in this State, that upon the wife’s death, her choses in action do not go to the husband, as administrator or otherwise. The fact that she has only a partial interest in them, and that they are in the hands of an agent, instead of in actual possession, certainly adds nothing to the husband’s right. So much of the money as was collected by the executor after the death of Mrs. Johnson, was a fund in which the defendant had no interest, and any payment to him out of it was wrongful; and the true owner, the plaintiff in this suit, has a right to recover it back from him. ¥e think the decisions of this court fully sustain the position, that the administrator of Jemima Johnson’s estate has a right to ratify the wrongful payment to the defendant, and sue him in an action for money had and received.—Vandyke v. The State, 24 Ala. 81; Prater v. Stinson and Wife, 26 Ala. 456; Bank v. Fry, 23 Ala. 770; Smith v. Wiley, 22 Ala. 396.

The court could not assume that none of the money paid over to the defendant was collected after the death of Mrs. Johnson ; and there was, for that reason, error in the charge given.

The widow of the testator took a life estate in certain lands. After her death, those lands were sold by the executors, and the defendant took a share of the proceeds of the sale of the land. Notwithstanding this sale was made after the death of Mrs. Johnson, the plaintiff in this suit has no right to recover the money so received by the defendant- The testator, George Phillips, died intestate as to the interest in that land remaining after the death of the widow. The land, therefore, descended to the heirs, and, after the widow’s death, their right to the possession attached. As the land is not devised, and as it descended to the heirs, the sale by the executors was unauthorized, and the administrator of one of the deceased heirs could have no interest in the proceeds of the sale. The interest of Mrs. Johnsou, upon her death, descended to her heirs, and those heirs are the persons injured by the unauthorized sale. Her administrator has no claim to the proceeds of the sale.

The conclusion that the plaintiff had no right to recover the proceeds of the sale of the land from the defendant, is a necessary sequence from the premises assumed, that the testator does not by his will bequeath the interest in the land allotted to the widow after her death. To prove the correctness of the premises assumed, it is necessary to examine the will.

In the first clause, the testator directs the payment of his debts. In the next, he directs that “ the remainder of his estate be managed and distributed as follows;” and then proceeds to direct that the whole estate, both real and personal, be equally divided amongst his wife and eight children, and that his wife shall hold what may fall to her upon the division during her natural life or widowhood, and after her marriage with the consent of the executors. By a codicil, the executors are authorized to sell, either at public or private sale, any part of the real estate, which they may deem it advisable to sell; and they are directed to divide the proceeds according to the main body of the will. “ The remainder .of the property ” and “the whole estate,” expressions found in the second clause of the will, cannot include the reversionary interest, because the remainder of the property, the whole of the estate, is directed to be divided between the widow and the children. It would be unreasonable to construe the will as directing a participation by the widow in the reversionary interest after her death. Everything which is bequeathed in the second clause is to be divided within a year after the testator’s death, and in the lifetime of the widow, who is to share equally with the children. By the whole of his estate, the testator meant that the entire specific property was to be taken into the division—not that the entire interest in the land bequeathed to the widow should be included in the division.

It is impossible to understand the authority to sell as including the reversionary interest, because the executors are required to divide the proceeds of the sale according to the provisions of the main body of the will. If it did, it would follow that the reversionary interest accruing after the widow’s death would be equally divided between her and the children.

Eor the error in the charge pointed out, the nonsuit in this case is set aside, the judgment reversed, and the cause remanded.