Haynie v. Miller

MANNING, J. No demurrer was interposed to the complaint before us, and under our statute it must be held sufficient. What it claims is a sum of money as due according to “ a certain receipt,” a copy of which is set forth. For the defense, it is insisted under the general issue, that the writing was a contract between husband and wife, which is legally void; and that the action between the present parties could not be maintained in a court of law. The writing may be regarded as, in effect, a certificate given by Mr. Kelly to his wife at the beginning of the late civil war, as evidence that he had received from her $750 to be added to a like amount of his own and converted into English sterling funds; that he had so converted it by obtaining a check on bankers in London for £321 8s. and 7d. — and that Mrs. Kelly was entitled to one-half of this and he to the other. We do not think this a contract which the law inhibits between the husband and wife. Though evidence was introduced on the subject, taken in the chancery cause, it is not shown how or where Mrs. Kelly obtained her money. But the law permitted her to own it as of her separate estate either equitable or statutory; and her husband who might lawfully surrender it to her absolute control and use, acknowledged by the writing he gave to her, that she had money to her separate account and credit in the bank, $750 of which he received as hers. Without evidence to support him, the defendant, as administrator of E. H. Kelly, is not entitled to deny that this money honestly belonged to Mrs. Kelly as her separate property. If it was of her statutory separate estate, the act expressly gives her a right of action in her own name, to recover [64] the corpus from any 'one, except her husband; and if it belonged to her equitable separate estate, then when she became discovert by the death of her husband, she could sue his executor or administrator at law. — Jenkins v. McConnico, 26 Ala. 246; Andrews and Wife v. Huckabee’s Administrator, 30 Ala. 143. No question was made as to the amount of interest defendant might retain as income that accrued in the husband’s life-time, for which he was not accountable. We think there was no error in the rulings of the Circuit Court. Let the judgment be affirmed.