
    Conoly v. Gayle et al.
    
    
      Bill in Equity for Injunction, &c.
    
    
      Statutory separate estate of wife; what right surviving husband takes in. — Under the provisions of section ¿379 of the Revised Code, on the death of the wife intestate, the surviving husband takes absolutely, for his own use, for life, the rents and profits of realty which was of the wife’s statutory estate, freed from any trust; and upon bankruptcy, his interest, amounting to a life estate, passes to his assignee.
    Appeal from Chancery Court of Dallas.
    Heard before Charles Turner.
    The appellees filed this bill against Conoly, Reese D. Gayle, and one Randle, the case being thus : In December, 1871, Mary L. Gayle, wife of Reese D. Gayle, died intestate, while possessed of a statutory separate estate consisting of lands, leaving her husband, said Reese, and several children, the appellees, surviving her. Before her death, her husband, as statutory trustee', had leased the lands for a term of years to one Randle, who gave a note- therefor, payable to said Reese. After the death of his wife, said Reese D. Gayle was duly adjudicated a bankrupt on his own petition, and his assignee sold and conveyed to appellant Conoly said Reese’s interest in the lands. The term of Randle’s lease not having expired, Conoly was about to collect the rents from him, when appellees, who are children of Mrs. Gayle, filed their bill to enjoin Conoly from attempting to collect the rents or from setting up any claim thereto; praying for a receiver to collect the rents ; that a guardian be appointed for the minor appellees, to provide for their maintenance and support out of said moneys until they arrived at age; and that said Reese be required to turn over the note for rent to said receiver, and be enjoined from interfering or collecting any of said rents.
    The chancellor granted the relief prayed, and hence this appeal.
    Pettus, Dawson & Tillman, for appellant.
    Morgan, Lapsley & Nelson, contra.
    
   STONE, J.

The record in the present case raises the _ single inquiry: What interest does the surviving husband take in the lands which were the statutory separate estate of his deceased intestate wife? This depends on the construction of section 2379 of the Eevised Code, which reads 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, and to the use of the realty during his life, unless he has been divested of all control over it by the decree of a court of chancery, as hereinafter provided.”

It is contended for appellees, and was so ruled by the chancellor, that whatever interest the husband takes in the land under this section, he holds in trust, and it is not liable for his debts.

It will be observed that the same word, “entitled,” in this section, applies to the interest the husband takes in the personalty and in the realty. In the quantum of interest he takes the phraseology varies. He is entitled to one-half of the personalty absolutely, but is entitled to only the use of the realty during life.

The word entitle is a strong one. It means, in this connection, to give a claim, or right to. In the case of Marshall v. Crow, 29 Ala. 280, we held that under the section of the Code we are construing, the surviving husband of an intestate wife “takes as distributee in all the transmissible estate of which the wife died the owner, whether in possession or not.”

In the case of Jasper & Madin v. Howard, trustee, the language of the will was: “I lend to my daughter,” &c., for certain specified purposes, certain property, “during her natural life, and after death,” to others. It was held that the word lend gave a life estate to the daughter, subject to the trusts therein declared.—12 Ala. 652.

In the case of Machen v. Machen, 15 Ala. 373, the language of the will was: “I leave to Jane Machen two negroes, Tamer and Prince, during her life, then to her bodily heirs. If there should be no heirs, for said negroes and increase to go back to the heirs.” It was held that the heirs did not take as purchasers, but that Jane Machen took an absolute title. See, also, case between same parties, 28 Ala. 374

"We think the words, entitled to the use, found in the statute, were intended to give to the surviving husband the rents and profits of the wife’s realty during his life. We find no words m the statute which authorize us to engraft a trust on such use, or to hold that it is but a continuation of the trust which existed during coverture. It has been repeatedly held by this court that the trust-character of the wife’s statutory estate is determined by tbe death of either husband or wife,—Hays v. Cockrell, 41 Ala. 75; Andrews v. Huckabee, 30 Ala. 143.

We have, then, tbe case of a beneficial interest in tbe bankrupt, amounting to a hie estate. This, on every principle of good morals, was liable to bis debts, and passed to bis assignee in bankruptcy .—Rugely v. Robinson, 10 Ala. 738,

It results from tbe principles above declared, that there is no equity in tbe bill of complainants.

Tbe'decree of tbe chancellor is reversed and tbe cause remanded.  