WILLIAMSON & WIFE vs. MASON, 23 Ala. 488

CHILTON, C. J.

Lucy Mason, late Lucy Baldwin, while the widow of Aaron Baldwin, and entitled as such to an undivided interest in her deceased husband’s estate, consisting of negro slaves, moneys and choses in action, being about to marry Jonathan Mason, entered into an ante-nuptial contract with him, which is as follows : “ Whereas a marriage is shortly intended to be solemnized, by the permission of God, between Jonathan Mason and Lucy Baldwin, and whereas said Lucy is heir to a considerable personal estate, claimed by her as widow and heir of the late Aaron Baldwin, deceased, consisting of negroes, bonds and moneys, as yet undivided; and whereas it is agreed that said Jonathan Mason, after said intended marriage is had, receive and enjoy, during the life-times of the said Jonathan and Lucy, all j^the rights and profits of the said Lucy Baldwin, and at their decease to descend to the heirs of the body of the said Lucy Baldwin, which may survive at that time; and it is further agreed, that the said Lucy Baldwin have no part or portion of the property now owned by the said Jonathan Mason after his death.

In testimony whereof,” &c. Signed by the respective parties, and dated 22d November, 1828. The parties intermarried shortly after this agreement was entered into, the husband reduced the property of the wife, consisting of six negro slaves and $1456 07, into his possession, and about a year thereafter said to a witness that all the property he had in possession belonged to his wife, except a horse. It appears that he retained the slaves up to the period of his death, which happened in August, 1849, they having in the mean time increased to twenty-three in number. Mrs.

Mason, at the time of her second marriage, had some eight children living by her former husband, but bore none to her second. She administered upon the estate of Jonathan Mason, and on the petition of his only child (Mrs. Williamson) and her husband, is ruled to a settlement of her administration before the Probate Court. In that settlement, the question arose, whether the twenty-three slaves and the $1456, the property and its increase mentioned in the agreement, belonged to Mrs. .Mason, or passed to her as assets of the estate of her husband, the said Jonathan.

The Probate Court ruled that they were not assets, and she was held not liable to account for them. This constitutes the main subject matter for revision. 1. There is no principle of the common law better established than that marriage is a gift of all the wife’s personal chattels in possession to the husband, and of such as he reduces into possession as husband during the coverture.

The share of the estate of Aaron Baldwin to which Lucy, his widow, was entitled, was reduced into possession by Mason, her second husband, and his marital rights attached, and the property became absolutely his, unless he is excluded by the terms of the deed entered into between them prior to their marriage. 2.

In construing this deed, with reference to the husband’s exclusion, it is proper to premise, that the law favors the marital rights of the husband, and unless from the words of the instrument the purpose to exclude him clearly appear beyond any reasonable doubt, he still retains his ordinary legal and marital rights over the property — 2 Story’s Eq. Jurisp. § 1881. 8. The deed before us contains no words of exclusion as to the marital rights of the husband.

It confers on him all the “rights and profits” of Lucy to the property during the “ life-times” of the parties, that is, for the life of each and the survivor.— In other words, the husband’s interest was not to terminate until the death of both husband and wife; for “ at their death” the property is to descend to the heirs of the body of the wife then living.

The instrument reserves no interest in the property whatever to the wife, and it follows, that, after it was reduced into possession by the husband, he took whatever interest the wife had by virtue of the marriage, conceding, for,the sake of the argument, that he ■ failed to take her entire interest under the deed. The husband then was the owner of tho absolute property in the chattels, but subject to the contingent limitation to the heirs of the body of the wife who might survive at the time of their death.

As the heirs of the body of the wife may not be, and in fact in this case cannot be, the heirs of the husband, since they had no issue, it follows that the rule in Shelley’s case has no application by way of enlarging the first estate, since that rule, only applies to enlarge the estate of the ancestor heirs generally, or the heirs of whose body, áre the ojwects-^tjN the limitation, and who can take by descent from hii) not therefore take as purchasers under the deed. 4.

It follows, therefore, that the interest of the husbá tinues for the life of the wife, and is assets in the hand executor, and there is a contingent interest, or quasi eon^ remainder over. The question comes up, whether such ir can be created by deed, without the intervention of a trustee. This point appears to have been settled in the case of Price v. Price, 5 Ala.

R. 578; and although the doctrine as there asserted is opposed to the English, as well as to many of the American authorities, yet, as it establishes a rule of property under which many titles may have accrued, we feel bound to adhere to it, without, however, conceding that a sale of the property by the first taker would defeat the remainder over, as asserted arguendo in that decision. 5.

The money for which the land was sold must be regarded as the substitute for the land, and when the object for which the sale was made, namely, the payment of the debts of the estate, was accomplished, the remainder of the proceeds were properly decreed to go, as the land would have gone, to the heirs.— Whether the heirs would be entitled to be refunded out of the personal assets the entire amount of the proceeds of the sale, and if so, whether the Probate Court is competent to do this, are questions not now before us. 6.

The proceeds of the sale which remained after the payment of the debts not being personal assets of the estate, the court very properly refused to allow Mrs. Mason any share in the same.

It does not appear that any question was raised as to her right of dower; but if her claim to share in the surplus proceeds of the sale of the land was predicated upon that ground, we are satisfied it was properly rejected, since it does not appear that her dower interest in the land was disposed of, even conceding that the Probate Court could have assigned dower out of the proceeds — a jurisdiction which we should be strongly inclined to deny ; but we leave it an open question, since its decision is not involved in the case before us.

We have now disposed of the assignment of errors on the part of Williamson and wife, and it results from what we have said that the decree as to them is erroneous, and must be reversed. 7. It remains only to consider one assignment by the counsel for Mrs. Mason, namely : the rejection of the item of one hundred dollars paid Messrs Stone & Judge, attorneys, for defending her against the previous application of Williamson and wife.— The record furnishes no ground for the-rejection of this item.

It appears to have been an item of expense incurred in good faith and necessarily, in the management of the business of the estate.—Gerald & Wife v. Bunkley, 17 Ala. R. 170. This is an error for which the decree must be reversed in favor of Mrs. Mason. Decree accordingly reversed and remanded. Let each party recover their cost.