23 Ala. 639 (Ala. 1853), Hooper's Ex'r v. Smith

Citation:23 Ala. 639
Opinion Judge:PHELAN, J.
Attorney:N. HARRIS, for plaintiffs in error, contended: I. B. STONE, contra, insisted:
Court:Supreme Court of Alabama

Page 639

23 Ala. 639 (Ala. 1853)




Supreme Court of Alabama

June Term, 1853

ERROR to the Court of Probate of Dallas.

N. HARRIS, for plaintiffs in error, contended:

1. That the settlement should have been made, and the rights of the parties determined, according to the act of 1848, as the will was admitted to probate after the passage of that act and before the passage of the act of 1850.-- Kidd v. Montague, 19 Ala. 623.

2. That a feme covert, as to her separate estate, is regarded as a feme sole, and has the same power of disposition that she would have if sole.-- 2 Bright on Husband and Wife 220 § 1, 223 § 8, 225 § § 17, 21; Clancy on H. and W. 347; Bradford and Wife v. Greenway, Henry & Smith, 17 Ala. 804. Therefore Mrs. Smith's deed of September 14, 1848, conveyed all her interest in the estate to her assignee.

3. That the receipt of Mrs. Smith for the money was a valid payment on the part of the executor, and discharged him from all further liability.--2 Williams on Executors 1217; 1 Roper on Legacies 887; 2 Lomax on Executors 145.

I. B. STONE, contra, insisted:

1. That a feme covert can exercise no powers in relation to her separate estate, except those conferred on her by the instrument which creates such separate estate.--14 Smedes & Mar. 56; 4 Barr 93; 7 Sm. & M. 68; 14 Ala. 121.

2. That the separate estate of Mrs. Smith was created by the act of 1850; that under this act the legal title in the property vested in the husband as trustee, and therefore a payment to the wife will not discharge the executor.-- 2 Williams on Executors 871; 1 Roper on Legacies 595; Toller on Executors 320, and authorities there cited.


When this case was last here, (20 Ala. 245,) it was sent back in order that Smith, the husband of one of the legatees under the will of John Hooper, should be made a party to the settlement of his estate in the Probate Court.

Upon the last hearing before the Probate Court of Dallas, there was no contest between the executor and the other legatees. The matter was narrowed down to a contest between Smith and wife (for the use of Mrs. Smith) against the executor, respecting the legacy or share of Mrs. Smith under the will of her brother, the testator.

By way of defence in this contest with Smith and wife, (use of the wife,) the executor made...

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