5 Port. 64 | Ala. | 1837
The defendant in error, obtained letters of administration, upon the goods and chattels of Eleazer Lee, deceased, in the State of South Carolina, in the year, eighteen hundred and twenty; and was afterward married to one George P. Street, with whom she moved to this State, before her administration was closed. They brought with them, to this State, the slave in controversy between the parties. The slave came to the hands
After the death of George P. Street, the defendant in error, as administratrix of Lee, brought the action of detinue in this case, against the plaintiff in error, to recover the slave.
Upon the trial of the cause, the Court below, instructed the jury, that the right to administer the estate of Lee, devolved upon George P. Street, by his marriage with the administratrix, and during the continuance of her coverture, her rights as ad-ministratrix, were suspended; but after the death of her husband, she had the right to administer the estate of her intestate, so far as it remained unad-ministered, and if the sale, by her husband, of the slave, to the plaintiff in error, passed no title to him, she might now, as administratrix, maintain her action to recover the slave. These instructions, together with others, which we do not deem it material to take notice.of, were excepted to by the plaintiff in error.
One objection to a part of these instructions is,
The question, whether the plaintiff in error acquired any right under the sale, did arise from the proofs in the cause; and from the record, it appears, the question,' which was a legal one iii its character, was referred to the jury. We think it probable, that one word was substituted for another, by mistake, either in preparing the bill of exceptions, or in transcribing it. But we have no alternative. The point must be decided as the record presents it, and for the error in refering a legal question to the jury, the judgment must be reversed.
The principiéis, we think, well settled, that upon, the marriage of an administratrix, her husband acquires all the rights of the administration, for the joint lives of his wife and himself, as fully as if it had been granted to himself.
During the coverture, the administratrix is incapable of doing any valid act, in relation to the property of her intestate, or of controlling the husband in any disposition he may chose to make of it.
As she voluntarily entered into the marriage, the effect of which, made her husband the administrator in her right, his disposition of the property is treated as her own, and the legal consequences of his acts in relation to the property, are the same to her, as if she had not been a feme covert, and the same acts had been done by herself. As she survived her husband, the rights of the administration survived to her; but she can avoid no act which he did, upon the ground that it was done without her knowledge, or against her consent. If the sale were made without authority, it was a. wilful breach of trust in the administratrix and her husband, for which the creditors and distributees of the intestate, if there be any of either class of persons, are not without a remedy; but the administratrix has no rightt to maintain an action to repair the devastavit. She has converted the slave to her own use, and for that injury to the persons who may be beneficially enti-
The object of the act of South Carolina, which is a part of the evidence in this case, was the tection of creditors and legatees or distributees, against private sales of the property. Such sales might be made in many cases, at prices greatly less than the value of the property, and where the excess of the value over the price accounted for, might be divided between personal representatives and their vendees, and the classes of persons now protected by the act, would be unable to prove the fraud and avoid the sales. The act was made to increase the facility of avoiding frauds. The protection intended by it, is for the classes of persons which have been mentioned, against personal representatives and their vendees; and not for such representatives against their own wrongful acts.
The case of a personal representative, who attempts to avoid his unauthorized sale, is not within the mischief, for which the act intended a remedy, and such a representative is not entitled to the remedy. The remedy given by every act, like the one in this case, is always limited to the mischiefs, the act was intended to prevent. '
It has been decided, that an act which declared
The judgment is reversed, and the cause remanded.
1 Wm’s Ex. 408— 2 Ib. 632, 633, 634.
2 Wm’s Ex. 632, 633,
1. Wm's Ex. 403— 2 Ib. 613, 1129, 1130.
1 Ham. R. 469. Ohio Con. R. 207. 1 Stew’ts R. 278. 18 John’s R. 515.