SPEAR'S ADM'R vs. LUMPKIN

SPEAR’S ADM’R vs. LUMPKIN. [ACTION ON COMMON MOÍTÍIY COUNTS.] X. When wife may sue alone. — For tlie recovery of money which belhngg to the corpus of a married woman’s statutory separate estate, whether held hy her under the Code or under the act of 1848, and whether the cause of action accrued before or after her marriage, the right of action is in the wife alone. 3. Sufficiency of complaint; averment of statutory separate estate. — In an action by a married woman, suing alone, a count which avers, that the money sought to be recovered was “ due to her, by account, on the 1st January, 1857, and secured, to her as a separate estate, under the Code of laws of the State of Alabama,” shows with sufficient certainty that her separate estate was held under the Code of 1852., and that the money sued for belongs to the corpus of that estate; and a count which avers, that the money was “secured to her, as her sole and separate estate, by the act of 1848, before her marriage with her' said husband,” also shows a right of action in her alone. 3. Same; averment of cause of action against an administrator. — An averment in the complaint, that “ the plaintiff claims of the defendant,as administrator,” &c., under the system of pleading sanctioned by the Code, shows with sufficient certainty that the debt is due from the defendant in his representative capacity. Appeal from tbe Circuit Court of Bussell. Tried before tbe Hon. Bobert Dougherty. This action was brought by Alfred Lumpkin and Frances Lumpkin, against Bichard P. Baker, as administrator of tbe estate of Lewis Spear, deceased; and was commenced on tbe 22d February, 1859. Tbe defendant pleaded, “ in short by consent, tbe general issue, with leave to give in evidence any matter that might be especially pleaded.” An amended complaint was afterwards filed; in tbe name of Mrs. Frances Lumpkin alone, which was in tbe following words: “Tbe plaintiff claims of tbe defendant, as administrator on tbe estate of Lewis Spear, tbe sum of one hundred and fifty dollars, due ber by account, on tbe 1st January, 1857, and secured to ber, as a separate estate, under the" Code of laws of tbe State of Alabama, before ber marriage with ber busband, Alfred Lumpkin. “2. Tbe plaintiff further claims of tbe defendant, as administrator on tbe estate of Lewis Spear, deceased, tbe sum of one hundred and fifty dollars, due tbe plaintiff by account, on tbe .1st January, 1857, from tbe defendant’s intestate •; which sum of money was secured to ber, as ber sole and separate estate, by tbe act of 1848, and before tbe plaintiff intermarried with ber busband, Alfred Lumpkin. “3. Tbe plaintiff claims of tbe defendant, as the administrator of the estate of Lewis Spear, tbe sum of one hundred and fifty dollars, due tbe plaintiff, by tbe defendant’s intestate, for money loaned by tbe plaintiff, to tbe defendant’s intestate, on tbe 1st day of January, 1857; which sum of money was then, and is now, tbe separate estate of tbe plaintiff, created by tbe new Code of tbe State of Alabama. “4. Tbe plaintiff further claims of tbe defendant, as tbe administrator of Lewis Spear, deceased, tbe sum of one hundred and fifty dollars, due tbe plaintiff, by tbe defendant’s intestate, on a stated account between them, on tbe 1st day of January, 1857; which sum of money was tbe separate estate of tbe plaintiff, before ber marriage with ber busband, Alfred Lumpkin, and was secured to ber, as ber separate estate, by tbe new Code of tbe laws of tbe State of Alabama; which sums of money are now due, with tbe interest thereon.” Tbe defendant demurred to' tbe entire complaint, “ because of repugnancy”; and to each count separately, on tbe following grounds: “To tbe first count, because it does not state from whom tbe debt was due — whether from Lewis , Spear or R. P. Baker — and because tbe simple allegation that tbe separate estate was secured to ber ‘under tbe new Code of laws of tbe State of Alabama’ is not sufficient to authorize a recovery in ber own name; to tbe second count, which says that tbe separate estate was secured to ber ‘under tbe act of 1848,’ because said act does not authorize a recovery in ber own name; to tbe third count, because it does not aver that tbe plaintiff was unmarried at tbe time of tbe loan, and because tbe simple allegation of a separate estate created by tbe ‘new Code of Alabama’ is not sufficient to authorize a recovery in her own name; and to the fourth count, because it does not aver that the account was stated while she was sole, and because the words ‘new Code of laws for the State of Alabama’ will not authorize a recovery in her own name.” The court overruled the demurrer, and held each count sufficient; to which ruling the defendant excepted, and which he now assigns as error, with other matters which require no particular notice. John M. Philips, for appellant. L. E. McCoy, and B. H. Baher, contra. [MAJORITY — A. J. WALKER, C. J.] A. J. WALKER, C. J. This suit is by a married woman. The first count of the amended complaint alleges an indebtedness due by account to the complainant, in 1857, and “secured to her as a separate estate under the Code of laws of Alabama before her marriage.” This averment shows that the debt became due to the complainant after the adoption of the Code, and before her marriage; and negatives the conclusion that she had a separate estate in the debt created by contract, by showing that the separate estate existed by virtue of the Code 'of laws of Alabama. We regard the allegation as sufficiently averring a separate estate existing by law, and that the debt belonged to the corpus of the estate. This being the case, the suit was properly brought in the name of the wife alone.—Pickens v. Oliver, 29 Ala. 528; S. C., 32 Ala. 626; McConechy v. McCaw, 31 Ala. 447; Boynton v. Sawyer, 35 Ala. 497. The second count varies from the first, in saying that the separate estate was secured to her “under the act of 1848.” We are not sure that any thing more was necessary than to show that the debt was due to the complainant before her marriage, and after the adoption of the married woman’s law; for debts due to a woman, who married after that time, would be her separate estate under the law of the State, and she could sue separately in her own name. But this right of suit is precisely the same, whether the separate estate existed by virtue of the Code, or of the act of 1848. We therefore can perceive no reason for holding the count defective, because it attributes the origin of the separate estate to the act of 1848. The objection to the third count is not tenable. If the money loaned belonged to the complainant’s separate estate, held by virtue of the law, and not of contract, (which we think sufficiently appears,) it matters not whether the loan was made before or after the marriage. In either alternative, the right of action is in the wife alone, as settled in Pickens v. Oliver, supra. If it be at all material, the fourth count, in our opinion, shows the account to have been stated before the marriage. The first count, in claiming the debt as due by the defendant as administrator, under our system of pleading sufficiently alleges the debt to be due by the defendant in his representative capacity.—Crimm v. Crawford, 29 Ala. 623. The grounds upon which the exceptions to the charge given, and the refusal to charge, were predicated, have not been shown to us in argument or brief. We perceive no objection to either. It is probable that what we have said will cover the points had in view when the exceptions were taken. Affirmed.