Dent v. Slough

BYRD, J. 1. Dennis Dent was not liable for the profits of the separate estate of his wife held under the Code, although he used the corpus and income in business with another. — Code, § 1983; Weems v. Bryan, 21 Ala. 302; Sessions v. Sessions, 33 Ala. 522; Andrews et al. v. Huckabee, 30 Ala. 152; Whitman v. Abernathy, 33 Ala. 154; Bennett v. Bennett, 34 Ala. 53. 2. Upon the death of the husband, the separate estate of the wife is discharged of the trust, and the legal title vests absolutely in her. — Andrews v. Huckabee, supra. And she may sue at law for its recovery, and can not sue in equity, unless she can do so upon some ground independent of the existence of the former relation of trustee, which the law imposed upon the husband. - Sessions v. Sessions, supra; Bennett’s Adm’r v. Bennett, 36 Ala. 572. 3. The trust funds in the hands of the husband, though mingled with his own, and incapable of being distinguished, will not be chargeable with the trust, but will remain a mere moneyed liability, and the wife must come in as a general creditor against his estate. If he carries on a mercantile business with the trust funds, the trust can not be visited on the business.— Goldsmith v. Stetson, 30 Ala. 167. And upon the same principle, the wife can not visit the trust upon the funds in the hands of the partner of the husband during his life, nor after his death, for any profits realized in the partnership business. And this court having decided, that by the death of the husband the trust ceases, and the legal title vests absolutely in the wife discharged of the trust, it would seem to follow, that the surviving partner of the husband is not liable to account for any profits he may have realized from the funds after the death of the husband, and that he is only liable as a debtor for the principal and interest. 4. The allegations of the third and ninth paragraphs of the bill, taken in connection with the averments of the bill, and the prayer thereof, entitle appellant to a discovery and [524] account from tbe appellee, as tbe surviving partner of tbe firm of Slough, Dent & Co. — 1 Story’s Eq. Jur. §§ 70 to 74; 2 ib. §§ 689 to 691; Perrine v. Carlisle, 19 Ala. 686; Halsted v. Rabb, 8 Porter, 63; Knott v. Tarver, 8 Ala. 743; Nelson v. Dunn, 15 Ala. 502. But tbe discovery and account will be limited to tbe amount of tbe money of tbe separate estate received by tbe firm of Slough, Dent & Co., and tbe disbursements made by tbem and properly chargeable against appellant, and interest on tbe amount due ber at tbe death of ber husband. Any payments or disbursements made to, or on ber account, legally chargeable against ber, will also be matter for tbe consideration of tbe chancellor, as also all other matters connected with tbe settlement of tbe account. Tbe decree of tbe chancellor, dismissing tbe bill, is reversed, and tbe cause remanded for further proceedings.