Holt v. Stollenwerck
| Decision Date | 16 November 1911 |
| Citation | 56 So. 912,174 Ala. 213 |
| Parties | HOLT v. STOLLENWERCK. |
| Court | Alabama Supreme Court |
Appeal from Probate Court, Jefferson County; S.E. Green, Judge.
Action by T. G. Holt against E. F. Stollenwerck. From a judgment for defendant, plaintiff appeals. Affirmed.
Bowman Harsh & Beddow, for appellant.
The widow of Charles M. Bryan, pending a suit by his administrator to recover damages for his wrongful death intermarried with appellant. Afterwards, the suit yet undetermined, the wife died. Still later the administrator had a recovery of substantial damages. Upon a settlement of the estate of Bryan in the court of probate, the damages recovered constituting the entire estate, appellant petitioned the court to be allowed to participate in the distribution; but the court decreed distribution among the three children of Bryan, excluding appellant from any share. Appellant brings that decree here for review.
Appellant claims under section 3765 of the Code, which, so far as pertinent, we quote as follows: "If a married woman having a separate estate die intestate, leaving a husband living, he is entitled to one-half of the personalty of such separate estate absolutely." Section 4486 of the Code is in this language: "All property of the wife, held by her previous to the marriage, or to which she may become entitled after the marriage, in any manner, is the separate property of the wife, and is not subject to the liabilities of the husband." Section 2486, under which the recovery was had, provides that: "The damages recovered are not subject to the payment of the debts or liabilities of the testator or intestate, but must be distributed according to the statute of distribution." These statutory provisions, read together and in connection with the proposition, broadly stated, that choses in action are property, are considered by appellant sufficient warrant for his claim. The gist of the argument is that Mrs. Holt's interest in the cause of action arising out of the death of her first husband became a part of the property of her estate. Pretermitting any question which might have been made in respect to whether Mrs. Holt's personal representative, rather than her husband, should not have intervened for the assertion of this claim on the settlement of the estate of her first husband, we state our conclusion that the mere right to sue for damages conferred by section 2486 of the Code, is not property, within the meaning of the statutes of distribution.
It is the generally, if not universally, accepted American doctrine that all causes of action arising from torts to real or personal property, by which its value is diminished, as well as choses ex contractu, survive and pass to the executor or administrator as assets in his hand, and are in consequence assignable. See note to McCormack v. Toronto Railway Company, 7 Am. & Eng. Ann. Cas. 500. It is also well settled that, in the absence of statutory provision, rights of action for torts purely personal do not survive, and are not assignable. Weller v. Jersey City Railway Company, 68 N. J. Eq. 659, 61 A. 459; Id., 6 Am. & Eng Ann. Cas. 442. Scores of adjudicated cases might be cited to both these propositions. ...
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...court to the act 'to prevent homicide.' ***" -and have been steadfastly adhered to by this court. L. & N. R. Co. v. Tegner, supra; Holt v. Stollenwerck, supra. It further established in this jurisdiction that, in actions for injuries to children of ages ranging from a few months to seven ye......
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Alvarado v. Estate of Kidd
...acts as "a quasi trustee for those who stand in the relation of distributees to the estate strictly so called." Holt v. Stollenwerck, 174 Ala. 213, 216, 56 So. 912, 912–13 (1911) (emphasis added). Regardless, the estate benefits from the good-faith acts of its personal representative in bri......
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...as an agent of legislative appointment for the effectuation of the public policy it declares-the prevention of homicides. Holt v. Stollenwerck, 174 Ala. 213, 56 So. 912; White v. Ward, 157 Ala. 345, 47 So. 166, 18 N.S., 568; Kuykendall v. Edmondson, 205 Ala. 265, 87 So. 882. In Holt v. Stol......
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Daily v. Rawlings Co.
...provision, rights of action for torts purely personal do not survive, and are not assignable.' ") (in turn quoting Holt v. Stollenwerck, 174 Ala. 213, 215, 56 So. 912 (1911))). However, as noted by the plaintiff in two cases he cites, subrogation is different from assignment. First, the pla......