BEAN vs. BEAN'S ADM'R

BEAN vs. BEAN’S ADM’R. 1BILL IN EQUITY SOU ACCOUNT, PARTITION, AND DISTRIBUTION OP IT CEDENT’S ESTATE.] 1. Muliifariousness. — A bill, filed by a widow, jointly with, her only child by her first husband, against the administrator and heirs-at-law of her second husband, asking an account of the hire of certain slaves, in which the widow had a life-estate 'at the time of her first marriage, during the period of her second husband’s possession of them, a partition of tho slaves between her and her child, and the recovery of her distributive share of hex second husband’s 'estate, — is multifarious, since it asserts separate and distinct rights, in which the complainants have no community of interest. 2. Dismissal for midiifariousness. — Although the chancellor seldom should, ho nevertheless may, sua sponte, dismiss a bill for multifariousness; and if the objection really exists, the appellate court will not reverse his decree. Appeal from tbe Chancery Court oí Bike. Heard before the lion. Wabe Keyes'. ■ The facts of this case, as disclosed .by the averments of the bill, are these : Alley Riley died, in 1S29, in Autauga county, Alabama ; and b.y bis last will and testament, which was duly admitted to probate after bis death, devised and' bequeathed to his widow, Mrs. Lorcas Riley, a life-estate in all his property, consisting of lands and slaves. The estate was duly administered, and the property passed into-the possession of the widow, who, in IS40, married one Jackson Mallet. Mallet died in 1845, intestate, “leaving no property of much value, except' the life-estate of said Lorcas in said slaves, and another slave purchased by he?, prior to her marriage with him, with the proceeds of her said life-estatehis widow and an only child by her, Charlea Mallet, being the distributees of his estate. In 1846, the widow married one Alexander Bean, having in her possession fill the slaves'which she had received under the will of her first husband, together with some other property, which had been purchased with the proceeds of their labor ; all of which went into the possession of said Bean on his marriage, and were used and enjoyed by him up to the time of his death, which occurred in 1855. In March, 1857, Mrs. Lorcas Beau and Charles Mallet filed their bill against the personal representatives and lieirs-at-law of said Alexander Bean; alleging, in addition to the facts above stated, that the marital rights of Jackson Mallet attached to the property in which the said Lorcas had a life-estate at the time of her marriage with him ; that his estate had never been settled and distributed, but had remained together undivided, and was ready for settlement; that the respective interests of the complainants in said estate had never been ascertained or set apart to them, but the entire undivided property had boon used and enjoyed by said Bean during his .marriage with said Lorcas ; and -that said Bean’s marital-rights had never attached to said property, because he had never reduced to possession any particular ascertained portiomthereof* The prayer of the bill was, that the personal representative of said Bean be required to account for the hire of said'lifé-estate slaves during the time said Bean had them in his possession, receiving and appropriating their hire; also, that the said slaves, with the other property purchased with the -proceeds thereof, be divided between complainants, and the right to the share of each, when ascertained, be vested in them respectively, according to the terms of said Riley’s will, and the law governing the distribution of the same, as part of the estate of said Mallet; also, that complainant Dorcas be decreed her' portion of the estate of said Beau, and for such other and further relief as the nature of complainants’ case may require.” The chancellor dismissed' the bill, sua sjoonte, for multi■fariousness; and his decree’ is here assigned as error.. Pugh: & Bullock, for appellants.- II. W. Hilliard,- contra. [MAJORITY — A. J. WALKER, C. J.] A. J. WALKER, C. J. "Ohe of the objects of this bill is to recover the interest' of Dorcas Bean in the estate of her deceased husband, Alexander Bean. In that branch of the case, Charles Mallet, the co-complainant of Dorcas Bean, has not the-slightest interest, and he has no connection with it. For the purposes of this opinion, we will concede to the complainants* .without deciding the question, that upon the facts alleged the two complainants were, as distributees of. the estate of Mallet, vested'with a joint ownership in the property, which was originally derived ’from the estate of Riley, and the accessions -to it. This 'being conceded, the complainant Charles Mallet may have a -right to recover from the estate of ‘Beantfor the use of. his moiety of the property. But the ■ other complainant, Dorcas Bean, can have no such right; for, by the marriage in 1S46, to Alexander Bean, and the reduction to possession by the husband, the latter became entitled to his wife’s personalty, and to the usufruct of her real estate during the coverture. If she had a separate estate in the property, (which the bill does not show,) it is not affected by our married woman’s.laws, and‘the, husband’s representative would not be responsible to her for tbe income, rents, and. profits, which she had permitted him to receive during the coverture.-: — Roger v. Roger, 29 Ala. 247. There is no point-of view in which Dorcas Bean is interested in the recovery ibr the use by her husband of the property which she and her co-complainant had at the time of her marriage; and file same thing is true as to property procured with the .proceeds or income during the marriage. There is, therefore, not the slightest interest in Dorcas Bean, so far as-the right of her co-complainant to recover for the use of the joint property is concerned. The bill seeks nothing so far as the property itself is concerned ; for it is in the possession of Dorcas Bean, and does not seem to be even claimed by the heirs or representatives of Bean’s estate. The bill, then, does not make out a case of any community of interest in the two complainants, but is designed to enforce rights distinct, unconnected, and having no relation to each other, and not such as to make it even a matter of convenience to consider them together. Such a bill is multifarious. It is objected, that the chancellor dismissed the bill for multifariousness in the absence of a demurrer. It is rarely advisable, that a chancellor should, suet sponie, dismiss a bill for such a cause; still, this court has decided, that he may do so, and that the decree will not be reversed, if the objection really exists. — Felder v. Davis, 17 Ala. 418. The decision referred to is well sustained by the authorities, and we are content to abide by it. — 1 Dan. Ch. Pl. and Pr. 397 ; Story’s Eq. Pl. § 284 a; Greenwood v. Churchill, 1 M. & K. 516 ; 3 Howard, 411; 10 Ohio, 456. Decree affirmed.