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[Grimball v. Patton.]

the fifth item of the will, having happened, Mrs. Grimball at her death owned the absolute equitable fee in her lands and the entire beneficial interest in the personalty. She died intestate, a married woman, over the age of twenty-one years, childless, a resident of the State of New York, and leaving her husband surviving her. She owned both personal and real estate, the latter being in the State of Alabama. Her death terminated the functions of the trustee, appointed and deriving his authority under the codicil; and her lands became a legal fee in those entitled to the inheritance, and her personal estate was alike dissolved of the testamentary trust.-Comby v. MeMichael, 19 Ala. 747; Powell v. Glenn, 21 Ala. 458; Schaffer v. Lavretta, 57 Ala. 14. The descent of the real estate is regulated by the laws of Alabama.

The bill avers that the lands of which Mrs. Grimball died seized, "belong to said trust estate;" that is, the trust created by the will of Dr. David Moore. We understand this to be an averment, that all the lands owned by Mrs. Grimball at the time of her death, accrued to her under the will of her father. These lands, by the terms of the codicil, were placed in trust "for the sole and separate use and benefit of my [testator's] said daughters respectively; and should they, or either of them, marry, then said shares to be for their sole and separate use, free from the control or management of their husbands, and not in any manner to be liable for their debts-the net income only to be allowed by my said executors for the comfortable support and maintenance of my said daughters and their families." These are clear, unmistakable words of exclusion of the marital rights under all our rulings, and constitute an equitable separate estate.-Short v. Battle, 52 Ala. 456, and citations.

Lands or other property thus held are not governed, or in any way affected, by any of our statutes securing to married women their separate estates, nor by any statutory law relating to separate estates.-Pickens v. Oliver, 29 Ala. 528; Cowles v. Morgan, 34 Ala. 535; Reel v. Overall, 39 Ala. 138; Short v. Battle, supra.

Being an equitable separate estate, there are two reasons why Mr. Grimball, surviving husband, takes no estate or interest whatever in her real estate thus situated. First: He is not tenant by the curtesy, for there was no issue of the marriage, born alive. Babb v. McKinley, 9 Por. 636; Bishop v. Blair, 36 Ala. 80; Cheek v. Waldrum, 25 Ala. 152; Rochon v. Lecatt, 1 Stewart, 590. Second: His marital rights never having attached to this property during Mrs. Grimball's life, by reason of the words of exclusion in Dr. Moore's will, they can not, under our rulings, attach after her death.-Randall v. Shrader, 20 Ala. 338; Mayfield v. Clifton, 3 Stew. 375; Bibb v. Mc

[Grimball v. Patton.]

Kinley, 9 Por. 636; Andrews v. Jones, 10 Ala. 400, 422; Welch v. Welch, 14 Ala. 76, 83; Vanderveer v. Alston, 16 Ala. 494; Lockhart v. Cameron, 29 Ala. 355, 363; Stewart v. Stewart, 31 Ala. 207, 216; Bradford v. Howell, 42 Ala. 422. The lands belong to the heirs at law, brothers and sister of Mrs. Grimball, as tenants in common; subject, of course, to the right of her personal representative to subject them to her debts, should her personal estate prove insufficient.-Calhoun v. Fletcher, 63 Ala. 574, and authorities cited.

There being an administrator of Mrs. Grimball's estate rightly appointed in this State, the personal assets within this State must, in the first instance, be paid to him. The law, in its own policy, and for wise and necessary purposes, devolves the legal title on him, and he alone can maintain suits to reduce the personal assets and choses in action to possession. He is entitled to them, first, for payment of debts in this State, if there be any, and for the payment of the expenses of administration. Second, he is entitled to them for the purpose of ulterior administration.-Ex parte Grimball, 61 Ala. 598; Welch v. Welch, 14 Ala. 76; Gardner v. Gantt, 19 Ala. 666; Lockhart v. Cameron, 29 Ala. 355; Broughton v. Bradley, 34 Ala. 694; Fretwell v. McLemore, 52 Ala. 124. There are exceptional cases, in which chancery has decreed distribution without local administration; but the averments in this record do not bring this case within that rule.-See the authorities collected in Fretwell v. McLemore, supra. It results, that Cruse, the trustee, must account to, and settle with Rison, the administrator, for all the personal assets that belong to the trust, including the land rents which accrued before the death of Mrs. Grimball. The real estate which came to Mrs. Grimball under the will of her father, together with the rents which have accrued since her death, is the property of her brothers and sister, unless needed in whole or in part, and claimed by the administrator, for the payment of debts.-Calhoun v. Fletcher, 63 Ala. 574.

We are asked, in the present case, to go beyond what is above declared, and to determine to whom the residuum of the personal property will go, after the payment of debts and expenses of administration. We do not understand the trustee's bill as raising this question, nor can we perceive that he has any interest in its solution. His bill was filed for instructions in the administration of the trust, and for an authoritative determination of the persons to whom he must account, and with whom he must settle. His duty and interest extend no farther. We have answered these requests, and have determined all the questions in which he can have any interest. The cross-bill of Mr. Grimball, however, asserts that he, as surviving husband, is entitled to the personal estate of which Mrs. Grimball died the

owner.

[Grimball v. Patton.]

This question can not arise in Cruse's settlement of the trust, and can only be considered when Rison, the administrator, comes to close his administration. There is nothing in the record which shows that his administration is ready for settlement. The very opposite is shown, for the administrator has not obtained possession of any of the assets. The crossbill was prematurely filed, because, in any event, it failed to show any present right to relief. Neither is the cross-bill germane to the purposes of the original bill, which, as we have seen, looks alone to the administration and settlement by Cruse of the trust estate in his hands. There is nothing in the frame of the present suit which will authorize Rison to settle his administration therein. The purpose and prayer of the crossbill can only become material, when Rison settles his administration; and hence we say, the relief prayed in the cross-bill is not germane to the scope and purpose of the original bill.

On the assignments of error by Grimball, the decree of the chancellor, dismissing his petition, and disallowing all claims attempted to be set up in the cross-bill, is affirmed. On the assignments of error by Rison, and by the heirs at law of Mrs. Grimball, the decree of the chancellor is reversed, and a decree here rendered, in accordance with the views above expressed. Let the costs of appeal in this court, and in the court below, be paid equally by appellant, Grimball, and by Cruse out of the trust fund.

BRICKELL, C. J., not sitting.

INDEX.

ACCOUNT.

1. Admission operating as stated account.-An admission, whether oral or written, of an indebtedness in a specific sum, makes the demand an account stated, and takes it out of the statute of limitations of three years. Nooe's Executor v. Garner's Adm'r, 444. 2. Same.-A letter, written to an attorney and solicitor, by his client, in reference to his charge for professional services rendered in a chancery suit, in the lower court and on appeal, contained these expressions: "I agree with you, and think myself that your exertions in the appeal case are well worth the $500 you charge. But I did think, and do now believe the $3,000, the charge in the case, was too much. Still, as the opposite party received that amount, I did not expect to get off with less.' Held, construing this letter in connection with the attorney's letter to which it was a reply, and which, while mentioning with particularity the services on the appeal, did not in terms refer to the case in the lower court, or to the fee charged for the services there rendered, was an admission of a present indebtedness only as to the $500, and referred to the charge of $3,000 as a past transaction. Ib. 444.

3. Presumption as to conclusiveness of accounting.-When two persons account with each other, and one pays the balance found against him, the presumption is, that the settlement includes all items of debt and credit then existing between them and over-due; but there is no such presumption as to a contingent or conditional liability which had not then become absolute. Dowling v. Blackman, 303.

ACTS OF CONGRESS.

1. Granting lands in aid of railroads; act of June 3d, 1856.-Construction and operation of grant, and title thereby acquired by railroad company. Swann & Billups v. Lindsey, 507; Swann & Billups v. Larmore, 555.

ACTION.

1. Against railroad company, for injuries to stock; when action does not lie.-An action for damages can not be maintained against a railroad company, on account of injuries to stock by trains running on its road, when such injuries occurred after the company had ceased to own or control the road, and while it was owned and operated by other corporations. Western Railroad Co. v. Huss, 565.

2. Against warden of penitentiary, on contract made by his predecessor in office.-Held to be an action against the State, in substance and legal effect, and therefore not maintainable. Comer v. Bankhead, 493.

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