Mueller v. Mueller, 127 Ala. 356

127 Ala. 356 | Ala. | 1899

TYSON, J.

By the terms of the contract entered into between the appellant and her late husband, before their marriage, it was expressly agreed that he was to repay to her the twenty-five hundred dollars of money belonging to her whenever she required it. It was under this agreement that this money went into the possession of the husband. This antenuptial contract was executed by the husband and wife in the State of Louisiana, which was the domicile of the wife before her marriage. The domicile of the future husband, however, was in the State of - Illinois. They were each over the age of twenty-one years, and there is no -fact shown by the record impairing their capacity to enter into the contract. It is obvious from the language employed in it, that it was the intention of the parties to exclude the right of the husband by virtue of his marriage, by reducing the money to his possession, to become the owner of it. The purpose evidently was to settle precisely both of their ifights with respect to this particular fund. He was to become her debtor and she his creditor — a status which excluded his marital rights and fixed hers as owner of an equitable separate estate in a jurisdiction where the com-moil law prevails; namely, the State of Illinois. That this was the purpose sought to he effectuated by the contract hardly admits of serious controversy. And especially is this true when we take into 'consideration the situation of the parties at the time of entering into it. In Louisiana where the civil law prevails, the money remained hers notwithstanding her marriage. 9 Am. & Eng. Ency. Law, 790; Story Eq., § 1367; 1 Barge L., 202. In Illinois, his domicile, where the common law prevails, and in which they contemplated living after the marriage, the money would have become his by reducing it to possession unless she protected her ownership of it by contract. This she had the right to do and did do. — 14 Am. & Eng. Encyc. Law, 539; 2 Brick. Dig. 72, § 51, and p. 81, § 164, et seq. The domicile of the wife follows that of the husband, and as the contract was made as a marriage contract and with a view to the laws of his domicile, it must be construed with reference to the laws of the State of Illinois. — Stewart on Husband & Wife, § 28 and note 6; also § 29 and notes; Glenn v. Glenn, 47 Ala. 204. And there being no evidence in the record of any statute regulating the property of married women in Illinois, we will presume that the common law prevails there.

Whig the character of her estate changed by the acquisition of a domicile in this State after marriage? In short, did her equitable separate estate become a statutory estate by reason of their becoming residents of this State? This question was answered in the negative in the case of Cahalan v. Monroe, 70 Ala. 271, where it was held that the act of bringing property, into this State after the husband’s marital rights had attached in South Carolina, under the common law, which was presumed to prevail there, could not operate to change its status or ownership. The case of Castleman v. Jeffries, 60 Ala. 380, was there held not to apply. The same answer was .given in Drake v. Glorer, 30 Ala. 382, where it was said: “It is unquestionably the law that whatever title Mrs. Drake may have acquired in Louisiana, while she and her husband were domiciled in that State, would be unimpaired by the change of the matrimonial domicile and the removal of the -property to this State.”

In Doss v. Campbell, 19 Ala. 590, it was again held, that the laws of the State in which the marriage is celebrated govern the rights of each party to the property of the other, this too without any -contract in reference to the ownership of the property, and their subsequent removal to another State only affects property afterwards acquired. Therefore, when the marriage was celebrated in Texas, by the laws of which the husband acquires no interest in his wife’s property by marriage, the subsequent removal of the parties with their property -to this State does not subject the wife’s property to the payment of his debts. To the same effect.is Irwin v. Bailey, 72 Ala. 467.

It-is'true that this contract was executed in Louisiana in 1887, subsequent to the passage of the act of February 28, 1887, which repealed preexisting statutes creating and regulating the separate estates of married women and introduced a new system, enlarging the interest of the wife and her capacity to sue and her liability to be sued, and annulled the title of the husband as trustee of his wife, etc. But this statute has no extraterritorial force and cannot have any influence upon the status of the wife as to ownership of property under a contract made in Louisiana with reference* to the laws of Illinois. Nor did the bringing of the chose in action owned by the wife as her equitable separate estate into this State any more affect- her right to it as. an equitable separate estate, than was the status or ownership affected in the cases above quoted from and cited by the general statutes of this State in force at that time. The change of domicile cannot and -does not-affect her rights which were already vested by virtue of the contract under the laws of her first matrimonial domicile. — Stewart on H. & W., § 32 and note 3.

There is no contention that this contract offends the laws of the forum and therefore invalid in this State, notwithstanding it was efficacious and valid in the State of Illinois. Indeed, no such contention could be made with any show of merit. -The husband died without repaying tliis money which went into his hands under this contract, and the appellant, his widow, recovered a judgment for it against hi® administrator, which was paid to her out of the assets of his estate. The money so collected, as we have shown, being her equitable separate estate by contract, could not have been deducted in any event from her distributive share in her husband’s estate. It is the statutory estate, that the statutes (§§ 1506, 1507) authorize to be deducted from her distributive share. — Harris v. Harris, 71 Ala. 536 ; Huckabee v. Andrews, 34 Ala. 646; Smith v. Smith, 30 Ala. 642.

It appears that appellant’s husband, whose estate is being administered, died without children or their descendants, but leaving'several sisters, a mother, and this appellant, his wife. He owned no real estate at the time of his death, and his estate consists of personal property of the value of |4,100. Under subdivision 3 of the statute of descent (§ 1453 of Code), the real estate of persons dying intestate descends, subject to the payment of debts, charges against the estate and the widow’s dower, if there'are no .children or their descendants, and if there be but one surviving parent, then one-lialf to such surviving parent, and the other half to the brothers and sisters of the intestate or their descendants, in equal parts. Under the provisions of section 1462, the personal estate of persons dying intestate as to such estate, after the payment of debts and charges against the estate, is to be distributed in the same manner a>s his real estate and according to the same rules; except that the imdow, if there are no children, is entitled to all the personal estate, or if but one child, she is entitled to one-half ; if more than one and not more than four children, to a child’s part; and if more than four children tó one-fifth. It is plain that as to personalty where there are no children if there is a wife, she takes the entire estate. The exception which he have italicized is in plain and unambiguous language and .needs no interpretation or construction. It is an express qualification of the provisions of subdivisions of section 1453, and there is no room for the application of the provisions of the latter, iii the distribution of personal property, where there is any one to take it, under the exception in section 1462. It is also plain, that it was the purpose to provide by the exception the descent or rather the distribution of the personalty only where there is a wife surviving. If there be no wife, then the descent or rather the distribution would be governed by section 1453.

We are clearly of the opinion that the appellant was entitled to the entire estate. This being true, there is 'no room for the application of the provisions of section 1506 or 1507. Their provisions are only applicable when the personal estate is to be distributed, parceled out, or divided among those who are entitled to it. The appellant being entitled to the whole, no act of parceling out or dividing can be called into exercise. It would certainly be a work of supererogation, not to say folly, to require the court to ascertain the value of her separate estate and after deducting it from her distributive share, which would be the whole of thé personalty after paying debts and charges, pay it over to her; or after the court had ascertained that her separate estate was equal to or exceeded her distributive share, then order the whole estate paid over to her. Nor do the words in section 1506, Kshe shall be not entitled to dower in or distribution of her husband’s estate,” in the event the court ascertains her separate estate is equal to or exceeds her distributive share, affect the question. These words cannot be held by any rule of construction to repeal the exception in 1462 which vests absolutely in her the title to the whole where there are no children. And unless the exception is repealed or we engraft upon it by interpolating into the statute a proviso to the effect, that her title shall not be an absolute one, but a conditional one, dependent upon her owning at the time of her husband’s death a statutory separate estate, there is no field of operation, in this case, for them. Repeal by implication is not favored and is only declared when there is an irreconcilable repugnancy between two statutes of different dates. — Enloe v. Ricke, 56 Ala. 500; 3 Brick. Dig. 750, § 47.

Besides these two sections of the Code cannot be said to be legislative acts of different dates, bnt are parts of the same system of laws enacted at the same time and must be construed in pari materia. Nor are we authorized to interpolate in the statute the proviso, making her title a conditional'one, when a construction can be given to the language under consideration which will harmonize the two statutes without doing violence to the provisions of either, and this, too, for the purpose of enabling the sisters of the husband to share with her, to be allotted a distributive share, in order to solely give effect to the plain meaning of the word distribution as used in the words quoted; a result which if followed to its logical consequences, in a case where there an* no children or their descendants,' no father or mother, no brothers or sisters, or their descendants, no next of kin capable of inheriting, would escheat the entire estate to the State — forsooth because the wife happened to own a statutory separate estate equal to or in excess of the value of her distributive share in her husband’s estate, which she hath not. For the interpolation, in order to effectuate the' construction contended for by appellees, would of necessity have to be extended to each of subdivisions 6, 7 and 8 of section 1453 of the Code.

The conclusion of the whole matter, when reduced to its last analysis, is, that it was simply the intention of the legislature to reduce-the distributive share of the wife in her husband’s estate or to defeat her right thereto, by virtue of her ownership of a statutory separate estate in favor of his child or children and no one else.

The result of our holding eviscerates all apparent repugnancy and gives a field of operation to all the sections of the Code regulating the descent and distribution of property of persons dying intestate; a result eagerly sought to be -attained by the courts and in consonance with sound principles or rulés of construction.

It is unnecessary to consider the other question relating to the money paid the appellant upon the insurance policies.

The decree of the probate court is' reversed and the cause remanded.