| Ala. | Jun 15, 1852
— The general question involved in this case, is, what is an executor bound to include in his inventory? Our statute on this subject, in the oath which it requires an executor to take, brings him under an obligation to “return a true inventory of the goods, chattels, and credits ” of the deceased, “ so far as the5r may come to his knowledge.” This inventory is returned under oath, and if an executor is sued for a devastavit, his inventory is prima fade evidence against him of assets to the extent of the amount therein stated. 1 Lomax on Ex’rs. 378; Ram on Assets, 145-8; Craig and wife v. McGehee et al., 16. Ala. 41.
That, under the head of credits, an executor would be bound to include in his inventory a debt due from himself to the testator, is clear from established doctrine that such a debt is assets. 2 Lomax Ex’rs. 230. This court has decided the question directly in several cases. Childress v. Childress, 3 Ala. 752" court="Ala." date_filed="1842-01-15" href="https://app.midpage.ai/document/childress-v-childress-6501722?utm_source=webapp" opinion_id="6501722">3 Ala. 752; Purdom v. Tipton et al., 9 Ala. 914" court="Ala." date_filed="1846-06-15" href="https://app.midpage.ai/document/purdom-v-tipton-6502944?utm_source=webapp" opinion_id="6502944">9 Ala. 914.
But the precise question arising in this case is, whether the husband, who is executor of his wife, is bound to include in his inventory moneys of the wife which he received during the coverture in the character of trustee as her separate property. It appears that Weems, the plaintiff in error, received from his wife’s guardian a certain sum in money, and also notes, which were afterwards collected by him. A consider
Tbe decision of tbis question will depend upon another, namely: whether tbe husband who is executor to bis wife is compellable to settle bis trusteeship of bis wife’s estate with tbe Probate Court ?
As to tbe general doctrine that tbe Probate Court cannot take jurisdiction of that which is a special trust, even in tbe case of an executor, and where it is created by will, see tbe cases of Portis v. Creagh, 4 Por. 332; Leavens v. Butler, 8 Por. 380; Harrison v. Harrison, 9 Ala. 73" court="Ala." date_filed="1846-01-15" href="https://app.midpage.ai/document/harrison-v-harrison-6502758?utm_source=webapp" opinion_id="6502758">9 Ala. 73; and Gerald and wife v. Bunkley, 16 Ala.
I felt for some time averse to bringing a strict trust like tbis, which, in tbe course of its existence and execution, would, in many cases, involve tbe rights of persons not subject to tbe jurisdiction of tbe Court of Probate, and who could not be called before it to have their rights adjudicated, into this court for any purpose. But as tbe jurisdiction is a convenient one, and where tbe settlement will involve tbe rights of creditors and distributees only, would be conclusive, I defer in tbis matter to tbe majority of tbe court, and bold, that a husband who is executor, is bound to settle bis trusteeship of bis wife’s estate with the Probate Court.
Tbis makes it necessary that be should state with that court a full account of all moneys or other property of tbe wife, received by him as corpus or capital of her estate, and not as income, and credit himself with all proper payments or disbursements made by him in ber behalf as trustee, so that the balance struck may be a credit of the estate or a debt due by tbe estate, as tbe case may be.
Tbe decision of tbe Probate Court to tbis effect was therefore proper.
What, we will next inquire, is tbe husband as executor bound to do in respect to tbe crops of 1850, or their proceeds? Tbis will depend upon tbe proper construction of tbe statutes of tbis State, passed in 1848 and 1850, “ securing to married
This provision was but a slight extension of the rights of the husband, as they had been long established by the courts of equity. 2 Roper on Husband and Wife, and authorities there cited.
Under this provision, there can be no doubt, but that the husband becomes tenant for the life of the wife (per autre vie) of the rents and profits of the wife’s estate. The right “ to have and possess, control and manage ” her property during the coverture, without liability to account for rents and profits, makes him so. Like every other tenant for life, he is entitled to emblements, that is, the crop growing or matured, and whether gathered or not gathered, at the termination of the life estate. Earn on Assets, 188. Not being liable to account to any one for the crop that was grown in the year 1850, under this interpretation of the statute, it follows, as matter of course, that plaintiff in error was not bound to include in his inventory the crops of that year or their proceeds. The law makes them his own.
There seems to have been no question made below in regard to the mules, and other stock, the household furniture, &c. The appellant, in his answer, averred that these were purchased with his own money, which was not disproved.
It follows, that so much of the decree of the Probate Court as requires the appellant to “ exhibit, in a new inventory, a full account of all rents and profits which have accrued on the said property, since the same came to his hands, during the lifetime of said testatrix; and that he exhibit a full return of the proceeds of the crop on hand at the time of the death of said testatrix,” must be reversed, and the cause is remanded, that the Probate Court may proceed in conformity with the views set forth in this opinion.