Bell v. Locke

STONE, J. Section 2371 of the Revised Code declares that “ all the property of the wife, held by her previous to the marriage, or which she may become entitled to after the marriage, in any manner, is the separate estate of the wife, and is not subject to the payment of the debts of the husband.” If the statute had stopped at this point, the wife would have had all the power to bind or dispose of the property, as if the same had not been what it called an equitable separate estate, or estate made separate by the instrument creating it. She then would have held it precisely as married women held property under the act “ securing to married women their separate estates, and for other purposes,” approved March 1, 1848, Pamph. Acts 1847-8, p. 79. Under that statute we have held that the wife could alien and encumber her property to the same extent she could her equitable separate estate.—See Hooper v. Smith, 23 Ala. 639; Reel v. Overall, 39 Ala. 138. For the extent of her power to alien or charge her equitable separate-estate, see 2 Brick. Dig. 86, §§ 211, 212, et seq. The act “ to alter and amend an act securing to married women their separate estates, and for other purposes,” approved 13th February, 1850, wrought material changes in the act of 1848. The later statute, with slight modifications, is embodied in the article of the Revised Code, commencing' with section 2371, above copied. Section 2372 declares that such property is trust property, and vests in the husband as trustee, who has the right to manage and control the same, without liability to account with the wife, her heirs or legal representatives for the rents, income, and profits. Section 2373 authorizes the husband and wife to sell and convey such separate property jointly, by instrument in writing, attested by two witnesses; or, section 1551, acknowledged in the mode, and before some officer authorized to take and certify acknowledgments of conveyances. Section 2374 authorizes the investment or use of the proceeds of separate property thus sold, “ by the husband in such manner as is most beneficial for the wife;” declares that the property in which such proceeds are reinvested “is also the separate-estate of the wife;” and that “ husband and wife can not [245] contract with each other for the sale of any property.” Section 2375 authorizes the husband to receive and receipt for the wife’s separate property. Section 2379 defines the interest in the realty and personalty which the husband takes in the separate estate of his wife dying intestate. Under section 2376, the wife’s separate estate is declared to be liable “ for all contracts for articles of comfort and support -of- the household, suitable to the degree and condition in life of the family, and for which the husband would be responsible at common law.” This can scarcely be classed among the powers of the husband, for it confers on him no special or peculiar power to make such contract, or to create such liability. We believe we have enumerated all the powers over, and rights in the separate estate of the wife, which the statute confers on the husband. It will be seen that, with the exception of section 2379, which declares his contingent interest in the succession, they confer no property, but are all referable to his character as trustee for his wife. A trustee with large powers and liberal exemptions, it is true; but still a trustee. They are the powers of control, management of the property of another, for defined ends and aims.—See Boaz v. Boaz, 36 Ala. 334; Patterson v. Flanagan, 37 Ala. 513; Hays v. Cockrell, 41 Ala. 75. Under sections 2383, 2384 of the Revised Code, if the husband be removed from the trusteeship of his wife’s separate estate, the result is that the husband no longer has “ any control over the estate of his wife, or the rents, issues, or profits thereof;” and under section 2379, he loses all right to share in the succession of her property. This takes away from him all the powers, rights, and interests in and over his wife’s property which the statute had conferred on him, and, without more, would leave her in the possession and enjoyment, untrammeled of all the powers over her property which section 2371 would confer, if that section stood alone. But the argument is stronger than this. Section 2384 says, the wife, thus relieved, “ shall have the same control over her estate, and the rents, issues, and profits thereof, as if she were a feme-sole, and may sue and be sued in her own name.” Language stronger than this can not be well conceived. It is too plain and pointed to require or admit of elucidation. It is its own best interpreter. The chancellor correctly construed the statute. The assignments of error and the arguments of counsel in this cause, raise only the single question considered and -decided above. The decree of the chancellor is affirmed.