GEORGE et al. vs. GOLDSBY, 23 Ala. 326

GOLDTHWAITE, J. The facts of this case may he thus stated: Anderson Rochelle died in 1842, leaving a considerable real and personal estate. By his will bo bequeathed certain specific legacies to his wife, Nancy Rochelle, and to his two daughters, Sarah 35. Ross, wife of James Ross, and Mary Bryant, wife of Thomas Bryant.

On the 21st of March, 1842, letters testamentary were granted to the executors named in the will, Nancy .Rochelle and James Ross, and on the 22d of December, 18? 3, coaled articles of agreement were entered into by Nancy Rochelle, James Ross and Sarah his wife, and Thomas Bryant and Mary his wife, (the two first named acting in their representativo as well »s their individual capacity,) of the one part, and T. B. Goldsby of the other part.

The agreement states, í«.i the inducement for entering into the same, that the estate was involved b< debt front twenty-three to twenty-five thousand dollar's, and that the parties of the first part were satisfied that the enSve property would be consumed in the payment of the debts, unler:: its representatives could obtain pecuniary aid Far hoyrntd their means, or the means of the estate ; that to save as much as ;oo:;aibio of the property they had applied to the party of the ¡second part, who, at their solicitation, had agreed to taka upon hiwoelf the management of the estate to the best of his shinty, to apply the proceeds thereof, including ta® labor of the slaves, Ac., to the payment of the debts, to allow the -Family of Anderson Rochelle a proper and reasonable amount for their support, to he determined by himself, and from time to time to make such advances as the exigencies of the estate might require, also to he determined by himself; in consideration of which, he was to have the entire control and management of the estate for ten years, and its proceeds for the same term.

If during such term the proceeds of the estate were not sufficient to compensate him for his services, and to reimburse him for his advancements, he was to retain the property until these objects were accomplished, such additional term, however, not to exceed five years.

By the terms of the agreement, Goldsby was allowed to abandon the same at any time, on giving thirty days notice in writing to the other parties, and, in the event of his doing so, he was to be compensated for his trouble, and repaid his advances. ' i-, On the 8th June, 18-16, letters of administration with the will annexed were granted to Goldsby. On the lYth November, 1851, James W.

Ross having died, and his widow Sarah having intermarried with Elias George, and Thomas Bryant having also died leaving his wife Mary surviving, application was made by the said Elias George and wife and Mary Bryant, to the Probate Court, for a rule against Goldsby for a final settlement of the estate.

Goldsby appeared, and showed for cause, by way of plea, the agreement referred to, averring that Sarah Ross and Mary Bryant, after the death of their respective husbands, assented to, ratified, approved and received the benefit of the same; that he took possession of the estate upon the execution of the agreement, and has controlled and managed the same according to its terms, and not by the order of the court ; and that by virtue of those facts the estate was not subject to final settlement and distribution. This plea was demurred to, and the demurrer overruled.

The demurrer to the pica presents the question, as to the effect of the agreement as to Mrs. Ross and Mrs. Bryant. At the common law, leases made by the husband and wife by deed, of the wife’s estate, were at her election voidable by her after her husband’s death; and acceptance of rent by the rafe at that period, if tho right of election was not before exercised, was held to be a confirmation of the lease.—1 Roll’s Ah. 348; Cro. Jac. 563 ; Bright on Husband and Wife 184.

But this rule as to confirmation was not universal, and was regarded rather as an exception to the general disability of coverture, allowed for the advancement of agriculture, and not extending to a joint demise for a long term of years by way of mortgage ; and in such cases, it could only be confirmed by a re-delivery of the deed, or acts amounting to a re-delivery.—Goodright v. Strophan, Cowp. 201.

The law in relation to leases by the husband and wife, of the estate of the latter, wa3 changed in England by the statute 32 Hen. 8 Ch. 28; and in this State our statute requires that, to pass any estate of a married woman in lands by her deed, the instrument should first be previously acknowledged by her on a private examination before certain officers.—Clay’s Dig. 155 § 27. The words of this act are general, and apply to any estate of the wife, and consequently include leases by deed.—Jackson v. Holloway, 7 Johns. 81, 87.

If no estate could pass by her deed not duly acknowledged according to the mode prescribed by the statute, it is absolutely void as to her, (Barnett v. Shackelford, 6 J. J. Marsh. 532; Elliott v. Peirsal, 1 Pet. 328;) and if void, it is incapable of confirmation, except by acts amounting to a re-delivery.-Co. Litt. 215 a; Doe v. Butcher, Doug. 50; Jenkins v. Church, Cowp. 482; Miller v. Shackelford, 8 Dana 289. In relation to tho interest of Mrs. Ross and Mrs.

Bryant in the personal property, the question as to whether the assignee for a valuable consideration is not entitled to the wife’s dioses in action, as against her surviving, unless he has reduced them into possession during coverture, has been much discussed, and the decisions are somewhat conflicting.

The inference to he drawn from tho earlier cases, as well as the most respectable text writers, is, that the assignment by the husband of the wife’s interest in the chose in action for a valuable consideration, will be good as against her surviving, except in those cases where the interest of the wife is of such a nature that it cannot possibly fall into possession during coverture.—Bates v. Dandy, 2 Atk. 207, reported more fully in note to Purdew v. Jackson, 1 Russ. 33; Earl of Salisbury v. Newton, 1 Eden 379; Co. Litt. 351 a, note 304; Roper on Husband and Wife 237; Clancy on Married Yifomen 121.

The first decision establishing the contrary doctrine was by Sir Tbomas Plummer, M. R., in Hornsby v. Lee, 2 Mad. 15, and was afterwards affirmed by the same judge, in an opinion of great power and perspicuity ¿in Purdew v. Jackson, after the case had been twice argued ; and his decision was confirmed by Lord Lyndhurst, in Horner v. Morton, upon a full consideration of all the English authorities bearing upon the question. The opinion in Purdew v.

Jackson is rested mainly upon the acknowledged principle of law, that marriage is not an absolute but a qualified gift to the husband of tho wife’s choses in action, and that his right to them only becomes complete by a reduction into possession during its continuance ; that a chose in action ceases to be a chose in action only when reduced into possession; and that the assignment does not operate to change its character, or to reduce it into possession, and if it remains in action it belongs to the wife if she survives.

If the assignor had no other interest than a right to reduce the thing into possession, that same right must be what the assignor agreed to cell, and the assignee to buy.— The reasons on which the opinion is based appear to us incontrovertible, and although tho new doctrine has been ably, but as we think unsuccessfully, opposed by Gibson, C. J., in 4 Rawle 483, tho decisions have been acquiesced in in England, and have been received as the law in Virginia and South Carolina, (Browning v. Headly, 2 Rob. 340; Matheny v. Guess, 2 Hill’s Ch. 63;) and we think they declare the law correctly.

It is urged, however, on the part of tho defendants in error, that by entering into tho agreement the executors assented to the legacies, and that as in that' event they were immediately recoverable, they passed by tho assignment of the husbands'of the legatees.

It is conceded that no direct act to manifest the assent of an executor to a legacy, is necessary. _ It may he implied from any act or expression on the part of the executor, which clearly recognizes a present right of the legatee to receive the legacy ; but, as the eonscquonces'of an-assent may be highly prejudicial to the representativo, it is necessary that there should be no ambiguity in tho act or expression by which his assent is manifested. — I Hop.

Log. 8 Ed. 736, But so far from the agreement indicating any intention by the executors to recognize the right of tho legatees to receive the legacies at that timé, it appears their whole object was to avoid the abatement of the legacies by transferring the whole of the estate to Golds-by for a term of years, in the hope that they might bo ultimately realized by pursuing that course.' In no aspect in which it can be presented, can the agreement be fairly considered as denoting the intention of tho executors’ to assent to the legacy.

As to the personal property, therefore, our conclusion is, that the assignment by Ross and Bryant did not, under the circumstances, operate to convey the interests which their wives possessed in the estate of their¿father, so as to divest them of their right of survivorship; that the deed of Mrs. Ross and Mrs. Bryant, being made under coverture, was absolutely void, and being void, could not be ratified or confirmed after the disability of coverture was removed, by any act not amounting to a redelivery.

It follows that, as the plea does not show that it was thus confirmed, it was defective, and the demurrer should have been sustained. The plea is also, as wo think, defectivo for another reason.— The statutes of this State fix and prescribe the duties of the executor, and the powers of the probate court. These duties the executor takes an oath faithfully to execute, and gives bond to secure their performance. The powers of the court are limited, and it must find a warrant in the statutes for all its actions, or it acts without authority.

The agreement which is set up in the present case, is outside of the executorship. Can the parties, by their contract, change the whole course of the adminstration 1 Can they keep the estate in the process of administration for fifteen years, not under the will, but under an agreement entered into by the executors and the legatees with a third party I There is no power in the probate court to administer a trust created by deed in reference to the assets of an estate, after that court takes administration under the law. It can then do no more than comply with the law, in duly administering upon the estate.

If the trust is valid, and can be supported, the courts of chancery are the only tribunals that can give relief. The view we have taken in relation to the plea, renders it unnecessary to determine any other question presented in argument. The judgment is reversed, and the cause remanded.