This action was brought by appellant for medical services rendered, and medicines furnished for tbe support and comfort of tbe household of defendants, S. J. Flournoy and Eliza Flournoy, his wife; and the complaint alleges, that at tbe time tbe debt was contracted, said Eliza J., was owner of an undivied one-seventh part of certain real estate, situated in Barbour county, and particularly described in tbe complaint, “said interest of said Eliza J. Flournoy being a vested remainder in said property after tbe termination of a life estate in tbe same to Sarah Toney, who is'now in life.”
A demurrer was sustained to tbe complaint upon tbe ground that an estate of which defendants bad no present beneficial enjoyment, was not liable by virtue of tbe statute under which tbe suit was brought.
Tbe question presented is a new one, and must be determined by a consideration of tbe enactment known as tbe “ married woman’s law,” in connection with a doctrine of tbe common law relating to property so situated.
*6521. The language of the statute is: “ All property of the wife, held by her previous to the marriage, or which she may become entitled to after the marriage, in any manner, is the separate estate of the wife, and is not subject to the payment of the debts of the husband.” — Code of 1876, § 2705 (2371). “ Property thus belonging to the wife, vests in the husband as her trustee, ivho has the, right to manage and control the same, and is not required to account to the wife, her heirs, or legal representatives, for the rents, income and profits thereof; but such rents, income, and profits are not subject to the payment of the debts of the husband.” — § 2706 (2372). These are the two principal sections of the statute. Its object was to abrogate those provisions of the common law, which conferred upon a husband the ownership of his wife’s personal estate, when not secured by some settlement to her separate use, and of her real estate during their joint lives— whereby such property might be subjected to the debts, or disposed of at the pleasure of the husband, and the wife be brought to want — and instead thereof, to preserve this property as the separate estate of the wife, while continuing in her husband the management of it as trustee, without accountability for the rents, issues and profits, but with the intent that the family should, if necessary, be thereby supported and maintained.
2-3. The statute was not intended to operate on, and make the husband manager of, any other property of the wife than that of which, but for this enactment, he might, by virtue of the marriage, have become the owner. Upon this principle it is, that tne construction is established that prevents it from reaching property, real or personal, which, by the instrument through which it comes to the wife, is so secured to hei% as to be put beyond the husband’s marital power, as was said in Short v. Battle, (52 Ala. 465). “In the absence of the statute, if the husband did not renounce his marital rights, the property of the wife became the property of the husband. He had unqualified dominion over her personal property, and of her real estate, but a mere reversion was left in the wife or her heirs. Having title, it was subject to the payment of his debts, and he could alienate or devise it at pleasure. To take away these common law rights of the husband, and to define and regulate the manner in which the property of the wife should be held, to which these rights ivould have attached, was the only purpose of the statutes.” And it is only this same property, that by section 2711 (2376), is made liable to be subjected to the payment for “ articles of comfort and support of the household, . . . suitable to the degree and condition in life of the family,” &e. Now, no *653such common law rights of the husband attach to realty in which the wife has only a remainder or reversion, expectant upon the termination of a precedent life estate. The seisin and possession are in the person who has the freehold estate for life. And, “curtesy, like dower, can only be had of an estate in possession; that is, if the wife’s estate is only in remainder or reversion, expectant on the termination of a life estate or other freehold, which is vested in some third person, the husband can not have curtesy, ‘ unless the particular estate be determined or ended during the coverture.’ ” 1 Bish. Law of Mar. Women, §489; Co. Lit. 29a; Bank v. Davis, 31 Ala. 631; Mackey v. Proctor, 12 B. Monroe, 433; Tayloe v. Gould, 10 Barb. 400; Blood v. Blood, 23 Pick. 80; Shoemaker v. Walker, 2 Serg. & R. 554. By the common law, therefore, such a remainder in realty, as the estate of Mrs. Flournoy is alleged in the complaint to be, was not, nor was any interest therein, liable to be sold by the husband, or subject to his debts; nor could he take any management or control of the property, or derive any “rents, income or profits” from it, so long as the precedent life estate continued. Until that is ended, there is no such estate in the wife as requires the protection which the law in question was designed to give. A construction of it, that would bring property thus situated into a condition which might subject it to sale under very great disadvantages, for the payment of debts that are properly those of her husband, personally, would be giving to the statute an operation conflicting with the object of the legislature in enacting it, and is, therefore, inadmissible.
Let the judgment of the City Court be affirmed.
Stone, J., dissenting.