Allen v. Miles

Harris, J., delivered the opinion of the court. This cause comes before us on appeal and cross-appeal from the decision of the Court of Probates, on the report of the commissioner of insolvency on the estate of Henry Allen, deceased. Mrs. Allen filed her account against the estate of Henry Allen, Jr., deceased, her late husband, for money of her separate estate, received by him for the use of negroes on his plantation, for proceeds of the sale of cotton, and for an amount paid and advanced by her after Allen’s death, on execution in the sheriff’s hands, which was about to be levied on the property of the estate. The commissioner reported her claim, amounting in all to $6723 54, to the court for allowance. Exceptions wore filed to the report and overruled by the court, and the claim allowed. Referees were appointed to decide on the validity of said claim, and report their action to the court, who subsequently made the decision and report, which was objected to, and said report disallowed. And thereupon, other referees were appointed, who subsequently reported their decision; allowing the account of Mrs. Allen, except for the hire and use of her negroes. Nothing is said about the proceeds of the cotton charged in the account; but we regard this also as rejected, as the order of the court confirming this report, only mentions the sum of $3000, said to have been loaned out by the decedent, and the execution paid by Mrs. Allen after his death. Bills of exception are taken and filed by both parties, to the several orders and decrees of the court. And the two main questions for decision are, first, as to the appointment of referees; and second, as to the decree allowing part of the account, and rejecting the balance. We think there was no error in the appointment of refei’ees under the statute. The decision of the referees has no binding effect on the court; it is a mere report, subject to the rejection or confirmation of the court; and this reference is not, therefore, to be regarded as in the nature of an appeal, but-an interlocutory order, directing further examination for the information of the court, pre [647] paratory to its final decree. • There was, therefore, no error in the reference. The main point, however, for our consideration, arises on the allowance and rejection of certain of the items of Mrs. Allen’s account. The record shows, that Mrs. Allen was married in this State to the said Henry Allen, Jr., now deceased, in the year 1854 ; that about three thousand dollars in money, the separate property of the wife, was placed by the wife in the hands of the husband, not for his use or as a gift from the wife, but for her benefit; that the said Allen, in his lifetime, stated that he had loaned all or the greater part of said sum at interest; and that at his death no note or other security was found among his papers for said amount. It further appears, that certain slaves, the separate property of the wife, were also used, from the month of May, 1854, to January, 1855, by the said Allen, and also for the year 1855 : that the said decedent also sold, and received certain sums of money, the proceeds of cotton, raised by the negroes of said Margaret A. Allen; and lastly, that the said Margaret A., after the death of the said Henry Allen, advanced the sum of $271 44, to prevent the sale of decedent’s property, under an execution against her estate, in the hands of the sheriff, and about to be levied on the property of the estate, to save it from sacrifice. These constitute the several items of the account, filed and allowed by the commissioners, and which are objected to, and made the subject of contest here. It will be observed, that the record shows no agreement between the husband and wife, in relation to the u$e of her property. Nothing appears to induce the presumption that it was intended that the husband should appropriate the property of the wife or its proceeds, without account; unless the ancient rules of the common law of England, with all tlie rigor of its unreasonable dogmas against the rights, the interests, or the power of the wife, in the preservation of her separate estate, are to be regarded as still existing in this State, since the adoption of our Statutes of 1839 and 1846. As is most forcibly and ably argued by counsel for Mrs. Allen, these rules were originally founded in reasoning, or rather in assumptions, that have been long since discarded by the advancement of the age; “in what is called the leaning of the [648] law against separate estates in married women; in the cherished policy of the law against their claim to a separate estate; in the idea that it was against natural right, that they should own property in their own right.” As in the case of Powell v. Hankey, 2 P. Wms. 82, when it was said, “ every reasonable intendment was to be made against the wife, and her consent to her husband’s receipts of her interests was to be presumed, and that he had received and lived upon it as a gift.” And that it was “ against common right that the wife should have a separate property from her husband; and therefore all reasonable intendments were to be admitted against her.” Per Lord Macclesfield. Chancellor Kent, after a thorough review of all this class of cases in England, says, “ the leaning of the courts has been too much against the wife, and the presumption of her consent too freely given.” Veneration for the opinions and reasoning of the ancient father’s of our jurisprudence, is due alike to the authority of their great names, as to the learning, research, and wisdom, which usually marked their labors; and yet, to claim for their opinions infallibility or perfection, at its inception, would be as servile flattery to them, as unjust to the noble science they inaugurated. Freedom of thought and freedom of opinion, have established an improved system of government, as well as an improved system of jurisprudence, in this country, as well as in England, the result and work of enlightened, unfettered reason; and the statesman or the jurist, who at this day plants himself upon a dogma of bygone years, for which he is unable to render a reason, has outlived the generation to which he properly belonged. It is the peculiarity of the present age, that in judicial proceedings, form is giving place to substance ;• fiction to truth; the ancient fetters of case-hardened error, to the freer and safer limits of laborious study and thought, employed to discover, understand, and declare that “perfection of reason,” which the common law is supposed to represent. Chancellor Kent, in the Methodist Episcopal Church v. Jacques, 3 John. Ch. R. 92, says: “ Such strong aversion to the wife’s independent enjoyment of her separate estate, manifested so early in the history of the cases, may have given a permanent tone and [649] color to the doctrines of the court; and, perhaps, the language of these cases will not now be thought to be founded on equity and justice.” Ey the Act of 1839, in relation to the separate property of married women, the husband was allowed the use and enjoyment of the proceeds and income of the estate; but it was even then the policy of our law, instead of declaring it “ against common right,” to protect and preserve her separate estate, and all judicial intend-ments were indulged in favor of such policy. Eut since the passage of the Act of 1846, extending our policy in favor of married women, so as to secure to them the proceeds and income of their separate estate, the husband is entitled to no such presumptions as were formerly indulged by the English courts against the rights of the wife, but the courts of this State regard him as a trustee, and will hold him to strict accountability, according to the provisions and policy of our statutes. “Where no trustee is appointed to take charge of the separate estate of the wife, the husband is regarded as a trustee for her; and if he, without her consent, appropriate to his own use her separate property, he is her debtor to that extent, and will be compelled by a court of equity to make ample indemnity to the wife, by a settlement to her use out of his own property.” Wiley & Co. v. Gray, ante, p. 510. We think it, therefore, consistent with the spirit and policy of our statutes in relation to the rights of married women, as well as the general doctrines of the law in relation to their incapacity to contract to their injury, except where specially provided for by law, to hold that contracts or agreements with their husbands, for the benefit of the husband, and to the injury and destruction of the wife’s separate estate, will not be presumed; and that the courts will indulge every reasonable intendment to the contrary, in the absence of all evidence of any express agreement. Pennington v. Acker, 30 Miss. R. 161, sustains this view. * Let the decree be reversed, so far as it disallows any part of the claims originally allowed and reported by the commissioner, and affirmed so far as it allows the amounts reported by the last referees, and let the cause be remanded for further proceedings.