Lee v. Tannenbaum

STONE, J. The present record raises some new questions respecting the liability of the wife’s statutory separate estate for articles of comfort and support of the household. Mrs. Lee was the owner of real estate, made her separate property by statute. An account for merchandise was contracted with the appellee — the purchases being made mostly by Mr. Lee, the husband — running through several years, and swelling in the aggregate to a considerable sum. Some of the items composing this account, fall within the classes which section 2711 of the Code of 1§76 declares “the separate estate of the wife is liable for.” Other items were for the subsistence and support of the wife’s plantation and the laborers thereon. The application of the income and profits of this plantation, so supplied and kept up, is the most material inquiry in this cause. Still, other items of the account were for use of Mr. Lee, the husband, and for the support of [507] another plantation, which the husband was cultivating in partnership with a third person. The account, though embracing these several classes of items, was kept on the books of appellee as one continuous running account, and the tendency of the proof is, that it was primarily charged against I. James Lee, the husband. This, however, is unimportant, as, if it was charged against I. James Lee and Susan L. Lee, his wife, it was and would be still, one continuous account. This account was the debt of I. James Lee — was one single debt, and not two debts. Hence, in suing Lee for its recovery, it could not be split up, and two or more actions maintained upon it. — South & North Alabama Railroad Co. v. Henlein & Barr, 56 Ala. 368, and authorities cited. There being in this case only one debt, it follows that all the doctrine about the application- of payments or credits had nothing to do with the case, and could have had no other effect than to confuse the minds of the jury, iff considering the true questions involved. The estate of a married woman, made separate by statute, and the husband’s rights in and powers over it, are the result of our statutes, and are unlike those of any other State of which we have knowledge. It is her separate estate, not subject to the payment of the debts of the husband. It vests in the husband as her trustee, who has the right to manage and control the same, without liability to account with the wife, her heirs or .legal representatives, for its rents, income and profits; but such rents, income and profits are not subject to the debts of the husband. The proceeds of such separate estate may be used by the husband in such manner as is most beneficial for the wife; and he may invest them for her benefit. He or she, by purchasing articles of comfort and support of the household, and for tuition of the children of the wife, suitable to the degree and condition in life of the family, and for which the husband would be responsible at common law, make the corpus of the wife’s estate liable therefor; but beyond this, neither husband or wife can make her statutory estate liable for any debt. — Code of 1876, sections 2705, 2706, 2709, 2711. The wife may make a valid will without the concurrence or approbation of her husband. — Section 2713. It will thus be seen that the right and title to property thus situated is secured to the wife, yet without power in her to charge it, save to a limited extent; that the husband has neither right or title to the property, yet, as trustee, may manage and control it, and invest its proceeds, when in money or converted into money; that the rents, income and profits pass to him as trustee, but there is no mode provided for making him account for them ; [508] and yet, they are not liable to his debts. True, the rents, income and profits are committed to him in confidence that he will employ them in support and maintenance of the family ; but this is only a moral, or imperfect duty. Its performance cannot be compelled, though, he might be removed from the trust, for a clear disregard of this obligation. The wife would then, as to this property, become reinvested with all the rights of a femme sole. — Sections 2717, 2718; Murphree v. Singleton, 37 Ala. 412 ; Patterson v. Flanagan, ib. 513; Dent v. Slough, 40 Ala. 518; Smyth v. Oliver, 31 Ala. 39; Whitman v. Abernathy, 33 Ala. 154; Hayes v. Cockrell, 41 Ala. 75 ; Rogers v. Boyd, 33 Ala. 175; Warfield v. Ravisies, 38 Ala. 518; Alexander v. Saulsbury, 37 Ala. 375; Reel v. Overall, 39 Ala. 138; Bibb v. Pope, 43 Ala. 190; Parker v. Dillard & Jones, 50 Ala. 14; Fry v. Hamner, ib. 52; Riley v. Pierce, ib. 93; Wright v. Merriwether, 51 Ala. 183; Eskridge v. Ditmars, ib. 245; Davidson v. Lanier, ib. 318 , Cowles v. Pollard, ib. 445 ; Northington v. Faber, 52 Ala. 45 ; Marks v. Cowles, 53 Ala. 499; Smyley v. Reese, ib. 89; Carleton v. Rivers, 54 Ala. 467; Bender v. Meyer, 55 Ala. 576; Janney v. Buell, ib. 408 ; Wright v. Preston, ib. 570; Coleman v. Smith, ib. 369 ; Wright v. Rice, 56 Ala. 43; Howard v. Daughtie, ib. 511; Schuessler v. Wilson, ib. 516; McDonald v. Mobile Life Ins. Co. ib. 468; Strong v. Waddell, ib. 471; Smith v. Carson, ib. 456; Connor v. Williams, 57 Ala. 131; Mitchell v. Dillard, ib. 317; Bell v. Locke, ib. 242; Holliday v. Jones, ib. 525; Jones v. Wilson, ib. 122; Peeples v. Stolla, ib. 53; Williams v. Bass, ib. 487; Williams v. Auerbach, ib. 90; Milhouse v. Weeden, ib. 502; Prout v. Hoge, ib. 29; Sterrett v. Coleman, ib. 172; Abrahams v. Chapman, 61 Ala. 108. We said above that there were not two debts in this case, and there is, therefore, no field of operation for the principles of law which regulate the application of credits, when the parties themselves fail to make the application. We dismiss that subject without further consideration. It is certainly the moral duty of the husband to preserve and keep the corpus of the wife’s statutory estate; and, to this end, he should not squander, or misapply the rents, income and profits, to the neglect of the high duty resting on him to furnish support and maintenance for his family. Should he do so, the Court of Chancery would be authorized to remove him from the trust, on a proper application and proof. But, when the income and profits are derived from a plantation, and supplies had been furnished which were necessary, and contributed to the production of the crop, then payment by the trustee for such supplies, out of the income and profits, would not only not be a breach of his duty [509] as trustee, but would be a praiseworthy act. Debts ought to be paid, and I confess myself no advocate of a system, legislative or judicial, which enables parties to hold property, and bid defiance to their too confiding creditors. In cases like the present, the law has not, in terms, declared how such payments, as are shown in this record, shall be applied. The bill of exceptions state that Mr. Lee gave direction that each payment should be applied to the account of the year in which it was made. This direction, if given, should have been followed. But, if such payments did not liquidate the entire account of the year, how stands the unpaid balance ? Has a particular class of items been paid, and another class been left unpaid ? There is nothing in the law, nor in the facts we have supposed, which authorize any such assumption. The only just solution we can give of this question, is to hold that a partial payment extinguishes so much of the debt, or legal liability, as was first incurred in the order of time, without any reference to the class of articles of which it is composed. This would leave the remaining, or last part of the account unpaid; and if any portion, or the whole of such unpaid balance was for articles of comfort and support of the household, under section 2711 of the Code of 1876, then, to that extent and no further, would the separate estate of the wife be liable therefor. This we declare to be the true rule, in cases like the present, of blended account, and partial payment. Several of the rulings of the Circuit Court are not reconcilable with these views. The court did not err in refusing to give the charge asked, numbered 1. It did not postulate enough to show the entire account was the property of one and the same person. Everything therein supposed may be true, and yet the entire interest in the merchandise may have changed hands on the first February. Judgment reversed and cause remanded.