Hardy v. Boaz

RICE, C. J. The bill of exceptions shows, that all the ¡property in the hands of Peter 0. Boaz, as the administrator of his deceased wife, Ann W. Boaz, and for distribution, had ■been received by him, as her administrator, from the executors of the wilLof her deceased father, William Hardy, sr., under the ninth clause of said will, upon a final settlement of his estate, after Amanda F. Hardy, the testator’s youngest daughter, had become of age. ■ That property was not reduced into possession by the said Peter, as husband, during the life of his said wife ; and therefore he has no right to retain, or have any part of it, as his own individual property,unless that right is conferred on him by the 8th section of the act of February 13th, 1850, entitled “ an act to alter and amend an act securing to married women their separate estates, and for other purposes, approved March 1st, 1848.” — Pamph. Acts of 1849-50, pp. 63-65. So much of that section as is applicable to this case, is in the [171] following words : “ That upon the death of any woman intestate, and having a separate estate as provided by the first section of this act, or of the act to which this is an amendment, leaving a husband living, such husband shall be entitled to one half of such estate, absolutely, if the said estate be personal, and for his lifetime, if said estate be real.” The first section of that act, and the first section of the act to which it is an amendment, referred to in the 8th section above copied, are in words and substance the same, and read as follows : “ That if any woman, before and at the time of marriage, shall have and own any property, or estate, whether the same be real, personal, or mixed, in possession, remainder, or reversion ; or, if any such estate shall, after marriage, by descent, gift, devise, or otherwise, accrue to any woman, all such estate and property shall be taken, held, and esteemed in law, as the separate estate of such woman, and for her sole and separate use, notwithstanding her coverture ; and no husband shall, by his marriage, acquire a right to the property which his wife had upon his marriage, or which she may after acquire by descent, gift, devise, or otherwise, except as is hereinafter provided for.” The only estate of the deceased wife, to which the 8th section of the act of 1850 gives the surviving husband any right, is a separate estate secured to her either by the first section of that act, or by the first, section of the act of 1848, and owned by her at her death under the provisions of one of those acts. — Cunningham v. Fontaine, 25 Ala. Rep. 644 ; Willis v. Cadenhead, 28 Ala. R., and the authorities therein cited ; Henry v. Hickman, 22 Ala. R. 685. It does not appear that the deceased wife of the said Peter C. Boaz, at the time of her death, had any such separate estate. The interest which accrued to her under the 9th clause of her father’s will, vested in her at his death in 1842, and was not at that time a separate estate, either by the common law, or by any statute then of force in this State. And as that interest had accrued to her before the acts of 1848 and 1850 were passed, it is not affected by their provisions. Those acts have no retroactive effect upon estates which had accrued to, and vested in the wife, before they were passed, but operate only as to property or interests which accrued to, [172] or were acquired by the wife, after their passage. — Kidd v. Montague, 19 Ala. R. 619 ; Manning v. Manning, 24 Ala. Rep. 386 ; Willis v. Cadenhead, and other cases cited supra. Our conclusion is, that the surviving husband (the said Peter C. Boaz) is not entitled, under the 8th section of the act of 1850, or under any other law, to any part of the interest or property which accrued to and vested in his deceased wife under the 9 th clause of her father's will; and that as she died intestate, leaving no child nor descendant of any child, but leaving brothers and sisters, her brothers and sisters are her heirs-at-law, and entitled as such to have her said interest or property distributed among them. — Clay’s Dig. 168, § 2 • ib. 191, § 1. The decree of the probate court, being in conflict with the law as hereinabove declared, is reversed, and the cause remanded. StoNE, J., not sitting.