Moody v. Hemphill

STONE, J. Mrs. Hemphill’s right to the distributive interest claimed in this suit accrued in 1840, but her right to its enjoyment did not arise until the death of her mother in 1S74. She intermarried with her present husband in 1846, before the enactment of the first woman’s law, in 1848. Hence, the present proceeding is not at all affected by our statutes securing to married women their separate estates. When this case was before us at a former term — 64 Ala. 468 — we stated the reasons why the possession of Mrs. Sims, the life-tenant, could not be regarded as the possession of those in reversion or remainder. It follows from what was there' said that, although Mr. Hemphill’s marital rights had attached on his marriage, the ownership in the fund had not vested in him, because he had never reduced it to possession, actual or constructive. It remained a chose in action, to be reduced to possession by voluntary surrender, or by suit, as any other chose in action, owned by the wife at the time of the marriage, was regarded and held at the common law. For the reduction of such claim to possession by process of law, the suit and recovery must needs be in the joint names of husband and wife. Blackwell v. Vastbinder, 6 Ala. 218 ; Sankey v. Elsberry, 10 Ala. 455; Pickens v. Oliver, 29 Ala. 528; Thrasher v. Ingram, 32 Ala. 645. It follows that the probate court erred in rendering the decree in favor of Mrs. Hemphill alone. All the other questions urged upon our consideration have been ruled adversely to the appellant, and, we thinlc, rightly so ruled. We have no disposition to’overturn any thing heretofore declared.—Hemphill v. Moody, 62 Ala. 510 ; s. c. 64 Ala. 468; Moody v. Hemphill, 71 Ala. 169. The decree of the probate court of September 12th, 1882, so far as the same decrees in favor of Mary J. Hemphill, is reversed at her costs, and, proceeding to render the decree the probate court should have rendered, it is ordered and decreed that the said Frank S. Moody pay to F. F. Hemphill and Mary J. Hemphill, his wife, the sum of five hundred and sixty-three dollars and ninety cents, for which execution may issue from the probate court; this decree to take effect and bear date as of [270] September 12, 1882. The costs of this appeal, both in the probate court and this court, to be paid out of the sum thus to be collected. In all other respects, including the decree in favor of John S. Jemison, administrator, the decree of the probate court is affirmed ; the decree to be executed by the probate court. Reversed to the extent above shown, and here rendered. Somerville, J., not sitting.