WHITWORTH et ux. vs. HART et al., 22 Ala. 343

CHILTON, 0. J. The Chancellor decided, that the negro boy, Bill, and the woman, Binah, and her six children were the property of the estate of Matthew Bradley, and did not belong to his widow, Margaret. It is insisted by the counsel for the plaintiffs in error, that this was erroneous. In order to arrive at a correct understanding of the nature of the title, we state the facts in relation to them. Margaret Bradley died in 1826, and by her will bequeathed these slaves to Matthew Bradley for life, and at his death to David Mitchell, who is the father of Mrs.

Whitworth, and who died in 1840, Matthew Bradley surviving him. David Mitchell made a will; but his children, all being of full age, agreed to dispense with the will, and to divide his property among them. There were seven children, Mrs.

Whitworth, who was then the wife of Matthew Bradley, being one of them; and upon the division, she consented and agreed with the other children to take, as a part of her share of her father’s estate, the remainder which belonged to her father in these slaves, to vest in her upon the death of her husband, Matthew Bradley, who then had them in possession, as owner for life under the will of Margaret Bradley. Upon the death of Matthew, the husband, Margaret, the widow, held possession of these slaves, and claims that her title to them attached in possession.

On the other hand, it is contended, that her purchase of the remainder enured to the benefit of her husband, whose life estate became merged in the larger estate in remainder, thereby vesting in him the absolute property. 1. Before proceeding to discuss this question, it is proper to notice an objection raised by the counsel for the defendants, that the answer of Mrs. Whitworth concedes that these slaves belonged to her husband.

Her answer sets up the will of Matthew Bradley, which gave her all his property; but in speaking of these slavei, she says, that there were included in the forty-five slaves left by Matthew, eight which were respondent’s share of her father’s estate, and were received by the said Matthew before his death, leaving the number to which he was entitled, in his own right, at the time of his death, thirty-seven. Pending the litigation, the parties agree upon the fact's corresponding with those above stated, which, by their mutual consent, are submitted for the decision of the court.

Now, we do not think we should refuse to consider these facts, upon the ground that the pleadings do not put them in issue, as it is reasonable to presun. e, that, but for the agreement, the pleadings would have been amended. Besides, no objection of the kind was taken in the court below; but the Chancellor, under the agreement, proceeded to determine what the law was arising upon these facts.

To refuse to revise his decision, which the parties have mutually invoked upon the facts submitted, on the ground of the want of a formal issue appropriate to them, would be to take the parties upon surprise, and to allow the defendants in error to claim the benefit of a decision which could not be revised, cutting the other party off from the benefit of an amendment which, had the objection been made in the court below, it was competent for the Chancellor, in the exercise of a sound discretion, to have allowed. 2.

Coming, then, to the main question: Under the facts stated, are tbe eight slaves, Bill, Binab and tbeir increase, tbe property of tbe estate of Matthew Bradley, or do tbey belong to Mrs. Whitworth ? It is clear, that David Mitchell had a vested remainder in them; that is, the right to the remainder was absolute in him, but the right to the possession and enjoyment of the use of the slaves was postponed until after the termination of the life interest of Matthew Bradley. Wilkes v. Grear, 14 Ala. Rep. 437, and cases cited on p. 443. What effect had the agreement entered into between Mrs. Bradley, now Mrs.

Whitworth, and the other distributees of David Mitchell, by which she was to have the remainder in these slaves, to take effect after the death of her husband ? There is no proof whatever, save such as the arrangement itself may import, that the husband ever consented to it. Can we imply his assent ? Has he done any thing, or said any thing, which would have prevented h'im, had he continued to live, from insisting upon a division of the estate of David Mitchell, disregarding the arrangement made by his wife ? So far as the facts are set forth in this record, he certainly has not.

As to the possession of the slaves, that he had in his own right, and derived them from his mother, Margaret Bradley, whose will conferred them upon him; and the whole record is silent as to his assertion of any other or further claim to them, or of any ratification of the agreement of the wife, or that he even knew that such agreement had been made. We cannot infer such assent from the supposition that the arrangement was beneficial to him.

Even conceding that it would have vested in him the whole interest, it does not appear but that the interest in her father’s estate relinquished by the wife, and in lieu of which she accepted this remainder, was more valuable than the remainder. With a view to the safety of the husband, the law disables the wife from entering into personal contracts so as to bind him, without his express or implied assent. Gilbert’s Law of Ev. 183; Smith v. Sheriff of Middlesex, 15 East R. 607; 1 Bright on Husband and Wife, 5. So also, the wife cannot receive or dispose of money without his concurrence.

Thus, where a legacy, bequeathed to her generally, and not given to her separate use, was paid to her, instead of the husband, the payment was held void as to the husband, — Norris v. He-minway, 1 Hagg. Eccl. Rep. 5; Moses v. Le vi, 3 Younge & Coll. 359; Palmer v. Trevor, 1 Ver. 261; 1 Bright H. & W. 40; and in Tracy v. Dutton, 2 Wils. 3, tbe same doctrine was held to apply to the payment of rent. If the husband authorize the wife to act as his agent, or she is accustomed so to act by his permission, in which event his authority as to the particular act may be implied, then he would be bound by it.

But it has been held, that the presumption of the husband’s authority will not be raised by the fact that the money received by the wife has been applied in payment of the husband’s debts. See Goldstone v. Tovey, 6 Bing N. C. 99; 1 Bright H. & W. 42. Erom these authorities, and others which we have examined, but which we need not cite, it is clear, that no court could infer the husband’s authority in the case before us; for there is not only a total want of all evidence of express authority delegated to the wife, but it does not appear that she was accustomed to deal for the husband, so as to imply his assent.

Besides all this, it appears by the verdict of a jury in this case, upon the issue devisavit vel non, that, at a period not remote from that of which we are speaking, the husband was incapable of transacting his business by reason of mental derangement or unsoundness. Be this, however, as it may, we cannot imply his assent. It follows, therefore, that the husband was not in any wise bound by this agreement on the part of his wife, but might, at any time before his death, have instituted proceedings to have recovered his wife’s share in her father’s estate, irrespective of her agreement.

As he was not bound at the time of his death by said arrangement, it results that the children of David Mitchell were not bound, as the contract or agreement must be mutually obligatory and bind both parties, or it binds neither. But it is said that the distributees of D. Mitchell now consent to be bound by the agreement; at least, that they raise no objection to it, and this consent should operate to render it valid.

However this may be, as between the distributees themselves, it is very clear that it does not in any wise affect the nature of the husband’s title; and we have to deal with that as it existed at the time of his death.

We have shown, we think, that he had no interest in the remainder by virtue of the wife’s- contract, sbe being incapable of contracting; and as there bad been no administration upon tbe interest wbicb David Mitcbell bad in tbe slaves, and no consent of tbe executor of said Mitcbell, wbicb could be invoked in aid of tbe husband’s title to his wife’s share or interest in tbe remainder, this interest remained to tbe wife, and tbe administrator of tbe husband has no legal claim to it.

This view renders it unnecessary to consider the question, as to whether, conceding the wife’s purchase of the remainder valid, the husband’s life interest became merged in the larger estate thus acquired by tbe wife, so as to vest in him the absolute property; or, whether the remainder, to take effect on the death of the husband, survived to tbe wife after the bus-band’s decease. These are questions about which there is some conflict in the cases; and we prefer postponing their decision until some case shall arise necessarily requiring it.

Upon tbe other questions involved in tbe record, namely, tbe allowance of interest against the widow, on the yearly value of that portion of the personal estate to which she was not entitled, and the compensation allowed the executor, A. B. Mitcbell, we agree with the Chancellor. There was no objection made to charging Mrs. Whitworth with the hire, but to the interest on it merely.

The interest is but a just compensation for withholding the principal sum; and when the principal sum is ascertained to be due at a particular period, and remains unpaid, without a sufficient excuse for its nonpayment, the interest follows as an incident. See Godwin et al. v. McGehee, 19 Ala. 468; 7 Por. 110; 7 Ala. 218. The services rendered by tbe executor are not such as to show that tbe compensation allowed by the Chancellor is at all inadequate, and no rule of law has been violated in tbe allowance.

Admeasured by the nature of the services and their extent, as shown by the proof, we should not disturb tbe allowance, unless obviously unjust or inadequate. We see nothing in tbe proof before us showing that such is the case in the compensation here allowed. Tbe decree, except as to the eight slaves and their hire, is affirmed; but as to these, it must be reversed, and tbe cause remanded.