The controlling point in this record arises on the construction of section 1-983 -of the Code. That section reads as follows: “ Property thus belonging to the wife,” [her statutory separate estate,] “ vests in the husband as her trustee, who has the right to manage-and control the same, and is not required to account with the wife, her heirs, or legal representatives, for the rents, income, or profits thereof; but such rents, income and profits, are not subject to the payment of the debts of the husband.” It will be seen that this section of the Code vests the legal title of the wife’s separate estate in her husband, gives him the right to manage and control the same, and relieves him from all accountability for its income and profits to the wife, her heirs, or legal representatives. The provisions of the statute, conferring on the husband the right of control* and exempting him from liability to. account, go no farther than this-
Undeivthe act of 1850, which substantially conforms to> the section of the-.Code above .-copied, this court, in the case of Weems v. Bryan, (21 Ala. 308,) considering the rights of a surviving husband in the statutory, separate estate of bis deceased wife, said : Under this provision, there can bo no doubt but that the husband becomes tenant for the life of the wife,- (per autre vie,) of .-the rents and profits of the wife’s estate. The right ‘ to have.and possess, control and manage’ her property during the- cover-ture, without liability. to account, makes him so. Like every other tenant for life, he is entitled to emblements,” &c.
In the case of Bennett v. Bennett, (34 Ala. 56,)we withheld express approbation of the opinion in Weems v. Bryan, (supra,) but adhered?to.it as.a rule of property.
So, in Pickens v. Oliver, (29 Ala. 532,) we followed out the principle announced is Weems v. Bryan ; and, although the question was not directly presented, we said -that, in the rents, income and profits of the wife’s statutory separate estate, the husband, during the continuance of the trust, is entitled to the entire interest, and the wife to no part of it. The same principle had been substantially *519affirmed in the older decision at the same-term of Andrews v. Huckabec, 30 Ala. 143. And in Whitman v. Abernathy, (33 Ala. 160,) we followed this principle, and ruled, that the wife could not recover from the husband’s vendee the hires of slaves belonging to her separate estate, which hires accrued during'the continuance of the trusteeship. — See, also, Rogers v. Boyd, 33 Ala. 175 ; Smyth v. Oliver, 31 Ala. 39; Durden v. McWilliams, ib. 438; Cowles v. Morgan, 34 Ala. 535; Alexander v. Saulsbury, January term, 1861.
It will be-observed that, in most of- these cases, the right of the husband to the rents, ineome and profits, is predicated on the assumed and unqualified ground,- that he was not liable to -account therefor. ''Such was the statement-Of the principle in Weems v. Bryan, and the later cases followed its lead. The language of-the Code is, that the husband “ is not required to account with the ‘wife, her heirs, or legal representatives'.There may be a distinction between- a general exemption from liability to account, and a .qualified exemption from liability to- account with the wife, her heirs, -mid legal representatives. Whether a husband, holding in his- hands the income and profits of the wife’s separate estate, can be made to account for such income and profits to creditors of the wife, is a question which has not been considered in this court, and we do not now propose to consider it. Nor will we inquire whether any peculiar significance attaches to the form of -the expression, “ is not required to account with the wife, her-heirs, or legal representatives.” These questions -will 'be disposed of When they arise.
In the later case of Boaz v. Boaz, (36 Ala. 334,) we think we furnished a much more satisfactory solution of the question under discussion, than is contained in the general language of the opinion in Weems v. Bryan, followed, as that language was -without question, in the later cases. We there said: “ The legislature, in making the exemption from liability for the husband’s debts, certainly did not look alone to bis benefit. It would be a strange anomaly in legislation, if- the- husband has been clothed with a right to *520the entire income of the wife’s property, exempt.from liabil-ity to his debts, for no purpose beyond the bestowment of a peculiar boon upon him. But furthermore, the pe~. culiar language of the statute is indicative of an ulterior pur-pose. It first declares, that the property is the wife’s, separate estate. It then vests it in the husband as a trustee,. a,-nd proceeds to declare, ,not that the income belongs to the husband, but that be shall not be required to account for it. The husband, therefore, holds the property as trustee, .and is entitled to the income, merely because he is not-.required to account for it as. trustee. It is a fair inference from these provisions, that the husband is not vested with a title in his own right, for any. space of time, to the wife’s separate estate; that the law.- has permitted him to receive the income, with the purpose that he might, as the head of the forpily, have the means of maintaining that family, -and" has made it free from liability^' to debts, in order that bis misfortunes and thriftlessness-i should not prevent the accomplishment of tire purpose.”
In promotion of this line of argument, we may well' inquire, if - the legislature intended to confer on the husband the unqualified property in the income and profits-, during the joint Imss-of himself and wife, why did they not? express that intention in plain and- unambiguous language ?■ Why, when simple words would so much better subserve--their purpose, employ the circumlocution, that the husband,., as trustee, should have the right to manage and control the: property, without .liability to account with the wife, her-heirs, and legal representatives, for the rents, income, and', profits ? If the intentiop was to make ap absolute gift,, wby restrict the language which exempted film from liabil--' ity to account ? These questions we ask, without intend-. ing to answer them.
It is not our intention to weaken or overturn any decision heretofore made, bearing on section 1983 of the Code. Those decisions have doubtless been acted on, and have be-, come rules of property.-. But we are not inclined to en-¡ lijrge thg.husband’s interest in the wife’s separate estate..
*521Following out the principles declared in the case of Boaz v. Boaz, (supra,) it is manifest; that a mortgage or pledge of the wife’s separate property, by the individual contract of the husband, and for his individual d'febts, is-not within the pale of .the authority which the woman's law confers on the husband and trustee. The intention and policy of the law, as was shown by the result of, the case of Boaz v.,Boats, are, that the wife shall receive a support from.the labor and inooineof the separate estate. Hence, Mr. Boaz, by withdrawing his protection and supervision from the home of his family, -was declared to have forfeited his right to continue in the exercise of the trust; ■ and, for that cause alone, he was removed.
So, in,this case, Mr. Flanagan, by mortgaging the slave, for his own debt, has assumedian ownership and control of the property, not compatible with the purposes of the trust». This cannot, with any propriety, be classed as an-' act of management or control of the property, with a view to the maintenance of the family. It is, so*, famas we can discover, a placing, of, the property beyond the reach.of the family ; not. as a means of securing to the wife the' enjoy-ment of her,-property, but as a means of raising money for the benefit of the husband.
If we were to hold, that.the statute confers on the-husband the right: to s.o dispose of the separate estate of the-wife, it wmuld follow, that the wife could not complain of this rightful exercise of authority and would not such principle arm the husband with power-to defeat the very object of the statute, as declared by itself, and by this court in the cases, of Smyth v. Oliver, and Boaz v. Boaz? We will not; further elaborate this view.
That the husband may hire or lease out the separate property of. the wife, as a general rule, we will not deny.Such hiring or leasing may be one, and, in the circumstances, the most advantageous mode of maintaining the-family from the income of the separate estate. This power-might be abused and for ’the correction of that abuse, the interference of the. chancellor mayberinvoked, — with what,. *522success, or show-of right, we will not now anticipate.
It results from what we have said, that the circuit court did not err in giving the first affirmative charge, and in'refusing the second and fourth charges asked. The second affirmative charge was not excepted to, and we need not consider it.
[2.] The court did "not err in admitting in evidence the declarations of Mrs. Flanagan’s father, made while he was in possession of the slaves, and explanatory of his possession ; also, in disparagement of his-title. That he claimed to hold them under a will, or supposed, will, cannot vary their legality as res-gesfee declarations. — Shep. Dig. 591, et seq.; Thomas v. Degraffenreid, 17 Ala. 602.
■ [3.] The testimony offered, tending to show that the slave Ellen died anterior to the death of Mr. Flanagan, was wholly immateiial, and was rightly excluded on that .ground, if no other.
Judgment, affirmed.