28 Ala. 374 | Ala. | 1856
We think the learned chancellor has, in the main, taken a very correct view of this case, and we fully concur with him in the following propositions :
1. That, as widow of James Machem, the complainant has no. right to hold on to the slaves in controversy, and resort to a court of equity to have them set apart as so much of her share of her husband’s estate. The statute law has provided another forum for making the distribution, in eases where a division or allotment of personal chattels in specie is required to be made of decedents’ estates; and, although there are cases where the ohancery court may rightfully exercise juris
2. "We agree that the will of Merry Hall cannot be reformed, so as to vest in the complainant a separate estate, by reason of any agreement entered into between said testator and the husband of complainant before the will was made, that it should contain such a provision. The will is ambula--tory. The testator could, and non constat but that he did, change his mind. Be this as it may, we must look to the will, and construe it according to the plain import of its terms. If these contain no ambiguous expressions, requiring explanation by proof, we are not permitted to receive oral proof, to alter, add to, or vary its terms. — Jarman on Wills, 342, et seq.; ib. 346-349, and note.
3. It is further very clear, and so it was decided when this same will was presented before this court for construction in 15 Ala. Rep. 313, that in the bequest to complainant of the slaves in controversy, no separate estate is created. It only remained, therefore, that the husband, James Machem, should reduce the slaves into his possession, quoad husband, to complete his right of absolute property in said slaves.
4. We also concur with the chancellor, that any declaration made by James Machem, going to show that the property was the separate estate of his wife, founded in ignorance of his rights, should not be received to divest the property out of his administrator. And here we take occasion to say, that it is very clear he was mistaken, as to the legal effect of the bequest of the property to his wife by the will of her father. He supposed it vested her with a separate property, and effectually excluded'his marital rights. We have seen it did not. But we shall recur to this subject again, when we come to treat of the effect of these declarations in another aspect.
5. The question, however, still remains, Did the husband, James Machem, ever reduce the property into his possession, as husband ? — Bell on H. & W. 49-50; 1 Bright on H. & W. 34; Co. Lit. 351, b. We think the proof set out in this record shows that he did not. It establishes, with reasona
6. It follows, however, if this be a correct view of the facts, and the marital rights of the husband never attached to 'the slaves, that the complainant has no need to resort to chancery; for, upon the death of her husband, her remedy is complete at law. The decision of this court in 15 Ala., above referred to, was predicated upon the facts then presented, showing a delivery to the wife without more. The
It is only upon the principle, that the husband’s marital rights did attach, and that he subsequently made a gift, provision, or settlement' of the slaves upon the complainant, that she could resort to this court, after his death, to enjoin the action of his personal representative for their recovery. The bill is not filed upon any such agreement, or to enforce any such gift by way of providing for her; and, if we concede that his declarations tend to establish the existence of a gift to the wife, there being no allegations in the bill to which the proof would be applicable, no decree can be rendered upon it. — 3 Ala. Rep. 421; 11 ib. 960; 13 ib. 681; 22 ib. 132; 23 ib. 845; 25 ib. 212; 6 John. 565; Story’s Eq. Pl. § 257.
7. The fact that James Machem was mistaken as to the legal effect of the bequest' to his wife, and that his declarations were predicated upon such mistake, (if such be the fact,) would, as we have suggested, destroy the effect of such declarations as indicating an intention to part with his right to the property, and to vest that right in his wife. But, if he refused to accept the gift as one to himself, and conceded the right of his wife to accept it as of her separate estate,— directed the executor so to deliver it to her, and the same was so delivered, and said Machem held it as her property, as shown by his repeated declarations qualifying his possession, then it is wholly unimportant whether his declarations and conduct were founded in a mistaken view of his rights or not; for he has not reduced the property into possession as husband. That his failure to do so was the consequence of a mistake, does not change the result, any more than delay in the collection of a debt due the wife dum sola, under the mistaken opinion by the husband that it would be paid to him without suit, or would go to his personal representative in the event of his death before its collection. The mistake, in
We have thus been particular in noticing the several phases in which this case is presented, to avoid misconception, as well as to enable the parties to understand their rights, and the primary court to adjudicate them.
■ It follows that there is no error in the decree of the chancellor in dismissing the bill. It is consequently affirmed.