38 Ala. 364 | Ala. | 1862
The question arising upon the evidence in the court below was, whether the marital rights of James Machen, who was the plaintiff’s testator, and the husband of the defendant, attached to the property in controversy during the coverture. “The inquiry, in every such case, is, not whether the husband had the right to reduce the property to possession as husband, but whether he actually reduced it to possession in that capacity.” In the absence of a statute changing the principle of the common law, where personal property, given to a wife during coverture, without expressions in the gift creating in her a separate estate, passes into the possession of her husband, who does nothing at the time of the gift or delivery of the property to prevent his marital rights from attaching, the
But the husband may repudiate all claim, as husband, to property given to the wife, and elect to treat it as hers, and • hold or control it as her trustee; and if such disclaimer and election are made before the title is vested in him, and the coverture is determined while the property is so held, his marital rights cannot be afterwards asserted by him or by his personal representative. In such case, the property vests absolutely in law in the wife, if she be the survivor, and in her administrator or personal representative, if she be the party who first dies; and it makes no difference whether the husband or wife actually controls the property. Nor is this result at all affected by the fact, that the husband’s refusal to receive the property as husband, and his election to hold it for his wife, are founded in ignorance or mistake as to his legal rights; for, although his conduct may be the result of mistake, still the fact would remain, that he has not reduced the property into possession as husband. These principles are all clearly settled by our previous decisions. — Machen v. Machen, 15 Ala. 373; S. C., 28 Ala. 374; Jennings v. Blocker, 25 Ala. 415 ; Gillespie v. Burleson, 28 Ala. 551; Lockhart v. Cameron, 29 Ala. 355.
It must be observed, that the controversy here is between the husband’s executor and the widow; and we purposely leave open the question, whether, as against a creditor of the husband, property given to the wife, without words creating in her a separate estate, can be exonerated from liability, by reason of his refusal to accept the gift as hus
It may be true, (though it is not now necessary to decide that point.) that although, in consequence of what transpires at the time of the delivery, the marital rights of -the husband do not then attach to the property, still he may afterwards, at any time during the coverture, assert his right to the property, take possession of it as husband, and thereby vest the title in himself. Assuming this to be the law, yet, if, at the time of the gift or delivery, the husband disclaims all title, aud consents to treat and hold the property as his wife’s separate estate, his subsequent declaration that the property was his, or that it should go to his children, or his payment of the taxes due on the same, would not constitute, as matter of law, a change in the. property from his wife to himself; but such declarations and acts are circumstances to which the jury may properly look, in order to arrive at the intention of the husband in reference to .the property.
The third and fourth charges asked by the plaintiff, and upon which particular stress is laid in the written argument of counsel, were propterly refused. There was evidence which tended to show hat, though the negroes were delivered to the wife during coverture, and continued on the husband’s premises until his death, still he never received or held the possession as husband, but, on the contrary, always refused to do so. These charges might well have been understood by the jury as a denial of the husband’s right thus to repudiate all claim to the property as husband, and of the validity of his election to hold it for his wife,
Without examining more in detail the various charges given and refused, it is enough to say that, considering them
Judgment affirmed.