Holland v. Barnes. must be confined to the general reputation of the witness. Inquiry as to particular immoral conduct, or a want of virtue in any one particular, is not allowable. Departures from the line of rectitude, often repeated, tend to impair the moral sense, and may lessen the obligation to speak or act the truth; yet individuals differ widely in this respect. Some are more abandoned, and less reliable than others, and until general character is lost, and confidence in moral integrity destroyed, among those to whom the individual is known, it would be unsafe to indulge inquiries as to the want of moral character in regard to any particular duty. A notorious want of chastity in a female would assuredly blight her general reputation, and destroy all confidence in her virtue in any respect. The bad character she would certainly obtain, could be then given in evidence to impeach her, but not the cause producing it. If an inquiry as to the cause should be indulged, it would be often interminable. There would be but little security for witnesses, who are not supposed to be prepared to defend against assaults upon their general reputation as to particular conduct, but to defend their reputation in its entirety. Morse v. Pineo, 4 Vt. 283; State v. Smith, 7 id. 142; Spears v. Forrest, 15 id. 437; Commonwealth v. Churchill, 11 Metc. 538. The inquiry as to the general character of the witness was proper, and the court erred in not allowing it. Nor does the fact that five other witnesses, who were inquired of as to the general character of the witness for truth and veracity, pronounced it bad, and that from it she was not entitled to credit, cure the error in the exclusion of the evidence, or convert it into error without injury. When error is shown, the presumption of injury arises, and must be clearly repelled before an appellate court will regard it as cured. Though it may appear to us that any answer which could have been made to the question disallowed, would have added but little, if any force to the testimony of the other impeaching witnesses, yet, we cannot know what effect it would have had on the minds of the jury. It was the clear legal right of the appellant to propound the inquiry, and all speculation as to the quantum of injury he has sustained by its denial, is unsafe. [Omitting several minor points.] The third charge requested should have been given. When evidence is given that on an insufficient consideration a promissory note has been obtained from a person enfeebled in body and mind by disease, and long continued drunkenness, and who at its execu Smyley v. Reese. tion is under the influence of liquor, a presumption of fraud arises which must be countervailed by evidence of a fair consideration, and fair and honest dealing on the part of him who claims the note as a valid contract. Hale v. Brown, 11 Ala. 87. For the errors pointed out the judgment is reversed and the cause remanded SMYLEY V. REESE. (53 Ala. 89.) Wife's funeral expenscs—Rights of administrators on final settlement-Counes fees-Gift from wife to husband. Although by the statutes of Alabama a married woman is entitled to the exclu sive use and ownership of her separate property, free from any claim or con trol of her husband, and the husband is not liable for her debts contracted before marriage, yet the husband, as at common law, is bound to pay the wife's funeral expenses, and cannot claim re-imbursement therefor out of her estate, nor for a monument which he erects at her grave. Executors and administrators are entitled to legal counsel in the administration and settlement of their trusts, whether there is litigation or not, and may charge reasonable counsel fees disbursed therefor against their estates. Owing to the presumed influence of the husband over the wife, gifts from her to him out of her separate estate are never supported without the clearest affirmative evidence of their fairness and propriety, especially when to the marital relation is added that of trustee and cestui que trust. A PPEAL from the Probate Court. The appellant, Smyley, was the husband of the intestate, and on her death was appointed administrator of her estate, consisting of some $20,000, which came to her from her father's estate. 1. The appellant claimed credit on his accounting as administrator for $500 funeral expenses and $500 for a monument erected by him over her grave, the same being suitable to the wife's estate and condition in life, and there being no evidence of the appellant's pecuniary means, these items were disallowed. 2. The appellant had employed an attorney on the final settlement and on a previous settlement of his trust, and paid him for his services. There were no objections to his accounts on the partial settlement, but on the final settlement certain items were disal lowed, which on the partial settlement had been allowed, in accord Smyley v. Reese. ance with the attorney's advice. The value of the services and the reasonableness of the amount paid therefor were admitted, but the court disallowed the same as a charge against the estate. 3. At the time of the intestate's marriage, her distributive share of her father's estate was in the hands of her guardian, and a few weeks after, the appellant received $1,000 thereof from the guardian, which his wife, the intestate, told him to keep, and with it pay the expenses of a journey to New Orleans, from which they had just returned. The evidence showed that it "had been spent between him and his wife." The appellant, on the settlement of his accounts as administrator, claimed this as a gift, but the Probate Court held that he must account for it with interest from his wife's death. Pettus & Dawson, for appellant. Stone and Clopton, contra. BRICKELL, C. J. I. The statutes creating the separate estates of married women deprive the husband of rights which would have accrued, and could have been asserted at common law. They do not absolve him from the duties the common law imposes. Rogers v. Boyd, 35 Ala. 175. The common law compelled him to maintain his wife to supply her with necessaries suitable to her situation, and corresponding with his social position, and the degree of his fortune. If the husband neglects this duty, the wife may on his credit, against his will, obtain necessaries, and he will be liable for them. In such case she is presumed to have authority to bind him, but the presumption is made only to enforce a performance of the duty. Schouler's Dom. Rel. 85; 2 Kent, 128; Tyler on Inf. and Cov. 340. This duty of the husband did not arise from, nor was it solely dependent on, the common-law principle, that marriage was a gift to the husband of the wife's estate that he thereby became vested with an ownership, qualified or absolute, of her property, and rights of property. The duty was as obligatory on the husband, to whom the wife brought no portion, as on him who had received the largest fortune. It was a consequence of the merger of the legal existence of the wife, in that of the husband. The marriage relation contemplates that the husband and wife shall live together, and "the power of umpire must be placed in the hands of the one or the other of them." This power, which is the Smyley v. Reese. power to rule the household, is committed to the husband. The wife is in subjection to, and dependent on, the husband; and from this subjection and dependence springs the duty to maintain her; as from the same relation of subjection and dependence arises the duty of maintaining the offspring of the marriage. The common law permitted parties entering into the marriage relation to separate the wife's property from the husband's, and by contract to exclude the rights the husband would have otherwise acquired therein. From a separate estate thus created, the wife was not compelled to make any appropriation for her own support-nor had the person supplying her necessaries in the absence of a contract, express or implied, made by the wife, any equity to charge it. Gunn v. Samuels, 33 Ala. 201; 1 Bishop's Rights of Married Women, § 895. The statutes creating separate estates allow them to be charged for necessaries in the narrowest sense of that term. Such articles "of comfort and support of the household," "as the husband may be charged with in invitum-such necessaries for the maintenance and comfort of the family, as, in the absence of a proper provision by him, his wife, or even a stranger, may supply to the family, and thereby fix a liability on him." Durden v. McWilliams, 31 Ala. 438. The husband is not relieved from his liability for such necessaries. The measure of his duty to furnish them is the extent of the liability of the separate estate. In every suit to enforce this liability he is a party, and a personal judgment is rendered against him, corresponding in amount to the judgment of condemnation of the separate estate. Ravisies v. Stoddart, 32 Ala. 599. The object of the statute is not his relief, but it is to secure a suitable maintenance to the family. Involved in the duty of maintaining the wife while living is the duty of burying her on her death. Schouler's Dom. Rel. 166. Though the wife dies while living separate from her husband, he is bound to pay her reasonable funeral expenses, and if he does not make the provision, a person voluntarily paying them is entitled to recover of him the amount so expended. Ambrose v. Kerrison, 4 Eng. Law and Eq. 361. The husband may remove from the grave of the wife a stone there erected by her parents, without his consent. The right of removal rests on "the indisputable and paramount right, as well as duty, of a husband, to dispose of the body of his deceased wife by a decent sepulture in a suitable place." Durell v. Hayward, 9 Gray, 248. In Bertie v. E Smyley v. Reese. Lord Chesterfield, 9 Mod. 31, the estate of the husband in possession of his devises was charged with the payment of the testator's wife's funeral expenses. The husband had requested the plaintiff to see the wife buried. The judgment was not, however, rested on that fact, but solely on the ground that the husband's estate is subject by law to pay the funeral expenses of the wife. A different decision seems to have been made in Gregory v. Lockyer, 6 Madd. Ch. 90, but the ground of decision does not appear. The court may have been enforcing a charge on the estate created by will, or imposed in some other manner. If it proceeds on the ground of a general liability of the wife's separate estate, to the payment of funeral expenses, or of necessaries supplied her while living, it is in conflict with our own case of Green v. Samuels, supra. It is also in conflict with the principle on which a court of equity proceeds in charging the wife's separate estate. The principle is, that the wife by her own contract or appointment has created the charge. As to separate estates recognized in a court of equity, she is regarded as a feme sole, having full power of disposition, if it is not restrained by the instrument creating it. Her act only can charge it. As she cannot by law enter into contract, and fix on herself a personal liability, her own engagements must be void, or chargeable on her separate estate. Her own act, her own promises, express or implied, create the charge, and if these are wanting, the separate estate is not liable. Collins v. Rudolph, 19 Ala. 616. It was never allowed the husband to charge the wife's separate estate with the maintenance of the wife during coverture. "Such an allowance," says Chancellor KENT, "would be a fraud upon the marriage settlement by which it was expressly declared, that the husband was not to have any right or interest in law or equity to any part of her estate." The estate was not to be subject to his control or engagements; and, to render it chargeable with the maintenance of her or his family, would be in violation of the settlement." M. E. Church v. Jacques, 1 Johns. Ch. 450. If it is charged with the payment of the wife's funeral expenses, to that extent it is charged with a debt for which the husband is legally liable, and he acquires an interest in the estate when it is indispensable to its existence that all liability for his debts, and all right or interest of his, shall be excluded. Johnson v. Johnson, 32 Ala. 637; Lamb v. Wragg, 8 Port. 73. The statute creating the separate estates of married women excludes all marital right of the husband, as VOL. XXV-76 |