
    Bentley & Co. v. Simmons.
    
      Action by Husband, for Rents, fyc., of Wife’s Separate JEstate.
    
    
      How httshand may sue for rents, $•<;., of loife’s statutory separate estate. — In an action to recover the rents, income, and profits of the wife's statutory separate estate (Iiev. Code, §§ 2372, 2525), the husband is not bound to sue individually, but may sue “ as trustee of his wife.”
    Appead from the Circuit Court of Lawrence.
    Tried before tbe Hon. James S. Clakk.
    Tbis action was brought by William F. Simmons, who described himself in tbe summons and complaint as suing “ as trustee of Vashti A. Simmons, bis wife,” against Robert F. Bentley and W. B. Irwin, as late partners composing tbe firm of Bentley & Co.: and sought to recover tbe price of two bales of cotton sold and delivered by plaintiff to defendants, and which tbe complaint averred to belong to tbe rents, income, and profits of tbe wife’s statutory separate estate. The defendants demurred to tbe complaint, because tbe plaintiff sued as trustee of bis wife, but tbe court overruled tbe demurrer; and tbe judgment on tbe demurrer is now assigned as error.
    H. C. Speake, for appellant.
    W. P. Chitwood, contra.
    
   B. F. SAFFOLD, J.

Tbe exception taken is to tbe overruling of a demurrer to tbe complaint, which describes tbe husband as suing in tbe capacity of trustee of bis wife, to recover rents and profits of her separate statutory estate. Tbe corpus, or property out of which tbe rents and profits are alleged to bave accrued is specified.

R. C. 2372 makes tbe husband trustee of bis wife’s separate estate, with right to manage and control tbe same, but without accountability to her for tbe rents, income, and profits. R. C. 2525 requires husband and wife to join, when she has an interest in tbe subject-matter of tbe suit; unless the’ suit relate to her separate estate, when she must sue or be sued alone. The exemption of the husband from liability to his wife for the rents, income, and profits, with the privilege given to him of managing the property, forbids his exclusion as a party in a suit to recover them. The same consideration has induced this court to exclude the wife as a party in such suit, as not having an interest in the subject-matter. Pickens v. Oliver, 29 Ala. 528. I think no harm would result from allowing her to be joined. If a plea of set-off were interposed to the husband’s individual suit, he could only reply that the subject of the suit was the income of his wife’s separate estate, and, therefore, not liable to his debts. This replication is expressed in a complaint by husband and wife, specifying the interest of the wife.

The same end is equally attained by the husband suing as trustee of his wife. And there is this propriety in it, that his receipt for the property is a full discharge. R. C. 2375. Pickens v. Oliver, supra, means no more than that the wife must not be joined in such suit. The rents, &c., do not belong to the husband. If he neglects to make a proper application of them, he will be removed from his trusteeship. Boaz v. Boaz, 36 Ala. 334. He holds them as trustee with accountability, unless he otherwise supports his family, and it is only under certain circumstances that the law presumes a gift to him of them from his wife. Roper v. Roper, 29 Ala. 247; R. C. 2383, 2384. As, therefore, the husband is not absolute owner of the rents, income, and profits of his wife’s separate estate, he is her trustee of them, and may sue to recover them in that capacity. The demurrer was properly overruled.

The judgment is affirmed.  