Hair v. Avery

CHILTON, C. J. When this case was first argued, I felt satisfied that there was'a misjoinder of parties complainant, in this, that the administrator of Mildred, who was dead, was joined with Etherlin, the survivor; and that this misjoinder was fatal to the complainants’ case. I have subsequently looked more carefully into the authorities, and upon more mature reflection, I am satisfied that my first impressions were erroneous. The argument to sustain the demurrer for misjoinder, is based upon the idea, that the will of the testator, bequeathing the property to his daughter Mildred and her two children, Mildred and Etherlin, created in the three a joint tenancy by the common law, to which the right of survivorship attached; and, since the will was made and took effect in the State of [272] Virginia, and no statute of that State was alleged, changing the common law, the latter must be regarded by us as of force, and the will should be construed accordingly. Hence it is urged that, upon the death of Mildred, her mother’s interest having been separated by a sale of the property under execution against her husband, the interest of Mildred survived to Etherlin, and therefore, the administrator of Mildred had no interest and was improperly joined as complainant with Etherlin. The complainants malee their title to the slaves through a bequest of Mr. Hill, their maternal grandfather. Whether the language of the will creates a joint interest in the property, or the parties hold as tenants in common, is matter of construction. In the settlement of this question, the defendants have a right to have all the parties before the court, who are interested in its decision. It is very clear, then, that Hair, the administrator of Mildred, the younger, might properly have been made a party defendant, conceding that it should turn out the right of survivorship existed in Etherlin. But he is made a co-complainant; and the bill proceeds upon the allegation, that each of the complainants has an equal share in the property secured to them by the bequest. Does it lie in the mouth of the defendants to say, ‘ no, it is a mistake; the property, upon a proper construction of the language of the bequest, upon the death of Mildred, survived to Etherlin, and she alone is entitled to sue for and recover it’ ? What interest have the defendants in the question, whether the right of survivorship obtains or not ? None whatever. So that they are protected, and the record is made to furnish a complete estoppel as to all parties in interest, against any subsequent effort to make the defendants liable upon the same title, it is all they have a right to demand. The demurrer concedes the truth of the facts stated in the bill. The complainants allege that they are “jointly and equally interested’’ in the property sued for, — that such is the effect of the bequest upon which they rely for title. Whether this be true or not, depends upon the law existing at the time the bequest took effect in Virginia. The foreign law is matter of proof. Non constat, they may show a statute of Virginia abolishing the right of survivorship as an [273] incident to joint tenancies. But, be tbis as it may, Etherlin, by uniting with Mildred’s administrator in a bill to recover each their one-third interest in the property, waives her claim by right of survivorship, if she have any, and concedes to her sister’s estate an equal participation in the property; thus effectually barring and estopping herself from ever after demanding the interest which the bill claims for the estate of Mildred. We are of opinion, therefore, that there is not a misjoinder of complainants in this aspect of the case; at least in such sense as to be fatal to the bill. — See, as to plaintiffs’ right of waiver, Story’s Eq. PL § 224; and upon the insufficiency of the objection to defeat the bill, Rhodes v. Warburton, 6 Sim. Rep. 617; Story’s Eq. Pl., note 1 to § 510, p. 542, ed. 1852; Aylwin v. Bray, 2 Younge & Jer. 518, note; Story’s Eq. Pl. § 544, note 2; ib. p. 573, n. 1, and cases there cited. See, also, 2 Younge & Jer. 520; 1 Keen’s R. 601-619; 2 Younge & Coll. 132; Edwards on Parties, p. 8, and cases cited by this author. 2. Another objection is taken, that Croxton’s administrator is the proper party to recover the interest which vested in Etherlin, his wife. But this cannot be maintained. He never reduced the property into possession as husband. It had never been divided, so as to separate the share which belonged to his wife; and being in the actual possession of another, not as a mere depositum, — not held by him as the simple bailee of Croxton, his mai-ital rights never attached; and the wife, surviving him, is entitled to recover. We had occasion to examine this question somewhat in Mason and Wife v. McNeil’s Executors, 23 Ala. Rep. 201, and nee.d not here repeat what we there ’ said. A mere constructive possession, such as the law draws to the title, will not suffice to vest a complete title in the husband, where it is in the actual and rightful possession of another. — 27 Ala. Rep. 129-130; 23 ib. 201, and cases cited. Mr. Bell, in his work on Husband and Wife, pages 49-50, says, “ Marriage is an absolute gift of all personal estate, which is either actually in the possession of the wife at the time of the celebration of the marriage, or which comes into actual possession during the continuance of the coverture.” Mr. Bright limits the husband’s marital rights to such personal estate as the wife was [274] “ actually and beneficially possessed of at the time of the marriage, in her own right, and such as come to her during the marriage,” — Bright’s Hus. and Wife, vol. 1, p. 34. See; also, Coke’s Lit. 351. I think it may safely be asserted as a correct rule, that the husband’s marital right does not attach, so as to defeat the wife’s right by survivorship, to property so situated that neither the husband nor wife has actual possession, and of which they could not obtain possession during the coverture, without becoming trespassers. In other words, where the actual possession, and the right to such possession, are in another, and so remains during the coverture, the property survives to the wife.- — See Williams on Pers. Property, pp. 7, 21, 25, 26. It results from what we have said, that the decree of the chancellor dismissing the bill was erroneous. Let it be reversed, and the cause be remanded for further proceedings.