37 Ala. 412 | Ala. | 1861
-The first charge given by the court, is erroneous. In case of-a legacy bequeathed to an executor, where the two characters of executor and legatee are united in the same person,' the same rule prevails which governs in other cases — that there must be either an express or an implied assent to the legacy, before it can be regarded as severed from the estate, and vested in tbe legatee. — 2 Williams on Executors, 1184; 2 Lomax on Executors, 133 ; 1 Roper on Legacies, 849. The principle that the acceptance of a deed of trust by a creditor, when tbe conveyance is beneficial to him, will be presumed, affords-no analogy to «guide us--in-the-decision of the ques
By the marriage of the plaintiff, her husbahd became co-representative of the estate, and it was competent for him to assent to the legacy. The assent of one executor is sufficient. — 1 Roper on Legacies, 845. Any .act of an executor, showing that he .has dealt with the property as if it belonged to the legatee, authorizes the implication of his assent'to the legacy. — -1 Roper on Legacies, 848. The ■husband was authorized by ‘the woman’s law’ of this State to receive his wife’s legacy; and upon receiving it, he wouldhe entitled to the income and profits. Upon reducing the note to his possession as trustee, he would become a proprietor -of it so far as the accruing interest was concerned; but .he would have no right to transfer-the note itself, without the participation of the wife. The husband’s transfer would . simply carry the interest accruing after the marriage. The sale of the note by the.husband was, therefore, a valid transfer of his ownership of the interest due on the note after the marriage. It involved the exercise of an individual ownership over the note, and must be deemed an assent to the legacy, in which he was himself interested. The result is, that when the husband sold the note, a right of action accrued to the wife, for the conversion of the note by the purchaser ; and ¡this right was not lost by>the husband’s death.
The judgment is reversed, and the cause remanded.