Smith's Heirs v. Smith's Adm'r

13 Ala. 329 | Ala. | 1848

COLLIER, C. J.

The act of 1812, “ concerning dower,” enacts that the widow shall be endowed of “ one third part of all the lands, tenements and hereditaments, of which her husband died seized and possessed, or had before conveyed, whereof said widow had not relinquished her right of dower, as heretofore provided for by law; in which said third part shall be comprehended the dwelling house in which her husband shall have been accustomed most generally to dwell, next before his death, together with the offices, out-houses, buildings, and other improvements thereunto belonging, or appertaining,” &c. Further, the widow may “ file her petition in the circuit or county court of the county where her husband shall have usually dwelt, next before his death, setting forth the nature of her claim, and particularly specifying the lands, tenements and hereditaments, of which she claims dower, and praying that her dower may be allotted to her.” The proceedings upon such petition shall be summary, and the court shall at the first term when such petition is filed, proceed to hear and determine, as to them shall seem just and right. Again: “ It shall be lawful for the widow to retain the full possession of the dwelling house in which her husband most usually dwelt next before his death, together with the out-houses, offices or improvements, and plantation thereunto belonging, free from molestation and rent, until she shall have her dower assigned her.”

In Weaver & Gaines v. Crenshaw, 6 Ala. Rep. 873, it was held, “ until dower is assigned to the widow, she has no estate in the lands of her deceased husband. The widow’s quarantine, by our statute, does not extend beyond the right to occupy the dwelling house, out-houses, &c., until her dower is assigned. Until then, she has no estate in the lands of her deceased husband, but a mere right to have her dow,-er allotted to her.” So it has been decided, that “ damages are properly the mesne profits arising after the death of the •husband, and before the suit for dower. These were not allowed at common law, but were given to the widow by the •statute of Merton. In this case, the chancellor has properly restricted the widow in the recovery of profits, to the time of the institution of the suit, the defendant being a purchaser. As against the heir, the rule would have been different, and ■damages would have been recoverable from the death of her husband. But whatever may be the rule at law, in equity the established doctrine is, to allow the widow the mesne profits as damages; and this not by analogy to the allowance of damages under the statute of Merton, but on the ground of title. This is decisively settled in the leading ease of Curtis v. Curtis, 2 Brown’s Ch. Rep. 619; Beavers & Jemison v. Smith; 11 Ala. R. 20. Let this notice of our statute law, and the decisions of this court suffice to guide us to a conclusion.

As the record states, the intestate resided in Aberdeen, and owned and kept the “Aberdeen Hotel,” at the time of his death, it must be intended, that if the hotel was not his dwelling house, that he at least dwelt in that town. The plantation was seven or eight miles distant, and it cannot with any propriety be said that it belonged to the house in which the husband of Mrs. Wiley “ most usually dwelt, next before his death,” merely because it was situated in the same county. There was no particular connection between the house in town and plantation, other than they both had the same proprietor; this merely proves that the plantation belonged to the intestate, and not that it was attached to the house. If a plantation, seven or eight miles from a residence in town, maybe regarded as appertaining to it, when the deceased husband had no plantation nearer, may not one twice, or even ten times the distance be considered in the •same predicament ? However the law may be, where one has a homestead in a town or the country, disconnected with his plantation, and his business is planting, his residence being selected with a view to health or society, we think the connection within the meaning of the act cited, cannot be maintained, where (as in this case,) the husband was the proprietor of a hotel in town, occupied and kept it open. Mrs. Wiley, as the widow of the intestate, had no right to occupy the plantation of which the latter died possessed; and her present husband, in virtue of his marital rights, was not authorized to take and retain the possession until it was allotted to her as a part of her dower; and consequently cannot vindicate the retention of the rents upon the ground of the wife’s quarantine.

Partial settlements made by an administrator are not res udjudicata; either party may, upon final settlement, show an error in the accounts, and the court may examine all matters of debit and credit, from the time the administration commenced, and render such decree as may be proper upon a view of all the facts. 9 Ala. Rep. 615; see also, Id. 330. Now, although the administrator may have charged himself with the rent of the plantation, it is clear that if he was not thus chargeable by the orphans’ court, it was competent for him to show, and the duty of that court to make the correction.

We assume it as a postulate, that if an administrator receive money or property belonging to the estate of his intestate, to which he is not entitled in his representative character, although he cannot hold it against the party legally entitled, yet the orphans’ court cannot take it into the account, and render a decree against him therefor, on the settlement of the administration. A court of law, proceeding according to the ordinary forms, or a court of chancery, may hold him accountable, and render complete justice.

In Leavens v. Butler, et ux. 8 Porter’s Rep. 380, we said, neither the common or statute law, give to an executor virtute officii, a right to the possession of the testator’s lands. If they are devised, they pass by the will to the devisee, who has the right of entry and possession — if undevised, they descend to the heirs, who are entitled to the possession. If the lands are required to pay debts they may be sold under the order of the orphans’ court, upon the application of the personal representative, notwithstanding the possession of the devisee or heirs. We also said, in Terry v. Ferguson, Id. 500, “ It is clear that the duties of an administrator do not require, or even authorize him in the ordinary course of administration, to exercise a control over the real estate of his-intestate ; yet if he assumes to lease it, he will hold the rent in trust for those legally entitled.” Subsequent to these decisions, a statute was enacted, making it lawful “ for executors and administrators to rent at public outcry, the real estate of any decedent, until a final settlement of the estate of the said decedent is effected, and that the proceeds shall be assets in the hands of such executors or administrators.” This act, it has been held, can only have a prospective effect, (1 Ala. Rep. N. S. 226,) and we may add, it cannot operate extra territorium, as the orphans’ court cannot confer upon the personal representative an authority or control over the lands of the deceased situated in another State. 8 Ala. Rep. 380; see also 7 Ala. Rep. 906.

We have repeatedly held, that the power and extent of the jurisdiction of the orphans’ court, is necessarily limited by the legislative acts which prescribe its authority and manner of proceeding. That court cannot award damages to the widow upon an allotment of dower; nor does the circuit court possess such a power under our statutes. The case cited from 11 Ala. Rep. explicitly states, that the court of chancery is alone competent to extend such a measure of relief to the widow. It is not pretended that damages have been adjudged to Mrs. Wiley, but only that she was entitled to them, as accessorial to her right of dower.

It does not appear that the statutes of Mississippi have modified the law of dower since the separation of the territory of that State from this, in 1817; nor does it appear that the-' present administrator received the rents from his predecessor in Mississippi, or whether he leased them to some third person, or charged himself as an occupant with the rent. What has been said will sufficiently show, that there is nothing in the record to indicate that the administrator received the-rents virtute officii; but in the condition in which the causéis. presented, the- reverse is rather inferable-; consequently he: cannot be required to account to the orphans’ court.

We have already said, that if he is not authorized' to retain them, he may be compelled to pay them over to the distributees, trustees of his wife, or whoever may be entitled. But relief must be sought in the appropriate tribunal. It follows from what has been said, that the decree of the orphans’ court must be affirmed.