The main question in this case is, whether the appellant was chargeable, upon the final settlement of his accouuts, as the executor of the will of James A. Anderson, deceased, with a negro woman, Jane, and her children, and with their hires. The appellant’s testator died in possession of the slaves, and they were included in the inventory as a part of the estate of the deceased. But the executor afterwards delivered the slaves to the widow, and paid hire to her up to the time of delivery. The executor was legally justifiable in delivering the slaves, and paying hire for them, to the widow, if they belonged to her. For the executor it is contended, that the slaves belonged to the widow and for the children, that-they were the property of the testator. It appears from the bill of exceptions, that the wife of James A. Anderson,. the deceased, is the daughter of John Spaight; that John Spaigbtdied in, 1825, leaving a widow and three children ; that the slave Jane belonged to his estate ; that there was an administration upon the estate that there was a final., settlement of the administration, and a discharge of the administrator and administratrix; that the debts of the estate were paid ; that Jane and the other slaves of the estate were left .undivided, and, after .the settlement of the*685. administration, remained collectively under the charge oí the administratrix, v;lro was the widow of the deceased, and her son s that in 1842 the appellant’s testator intermarried with Elizabeth V. Spaight, one of the distributees of Spaight’s estate, and-that then the widow of Spaight placed Jane in the possession of the testator and his wile, to be held as a loan until a division was had.-; that the children of Jane have been born since that time; -'that Jane and her children remained in the possession of the said James A. Anderson, the testator, until some time during the .'year 1849, when the distributees of the estate of Spaight made a division of the slaves belonging to that estate, including Jane and her children, and -joined in a conveyance, reciprocally conveying to each other their respective shares ; that Jane and her children were allotted to Anderson and his wife, and that they afterwards were in the .possession of Anderson, until he died. Upon these facts, did Jane and her children belong to Anderson, or to his 'wife, at the time of his death?
Without deciding the point, we grant, for the purposes of this opinion,-that, until the division in 1849, the slaves -Jane and her children belonged to the estate of John Spaight, deceased ; and that the status of the sláve .property of that estate was such, that an absolute right to his wife’s interest in it did ncri vest in - James A. Anderson, jure mariii, before the division in 1849. By marriage, a husband had, by the common law, a right to reduce his wife’s choses in action to possession, and thus acquire a title to the same during the coverture. The first statute securing to married- women their separate estates, was adopted on the 1st March, 1848. -From 1842 to March 1st, 1848,-James A. Anderson’s relation to his wife’s chose in action, consisting of a 'lawful claim to a distributive share of the slaves of her deceased father’s estate, was governed by the common law. The common law gave bim a right to -reduce his wife’s distributive share to possession, at any time during the coverture. This right was ntft taken away by the adoption -of the 'married woman’s la# *686of March 1st, 1848, but remained as complete and effective after the passage of that law, as it was before. The law has been so settled in this State, by the decisions in Kidd v. Montague, (19 Ala. 619,) and Sterns v. Weathers, (30 Ala. 712.) See, also, Manning v. Manning, 24 Ala. 386; Hardy v. Boaz, 29 Ala. 168 ; Sharp v. Burns & Coles, 35 Ala. 653.
It is probable, that the position which has been taken in. this State, upon this subject,.is irreconcilable with the posi-’ tion of the appellate' court of Mississippi, in, reference to a kindred question. — Clark v. McCreary, 12 S. & M. 347; Duncan v. Johnson, 23 Miss. 130. But the doctrine announced by this court necessarily controls the title of property to a large extent, and, having been recognized as law for ten years, is not. now open for controveisy. Wo do not wish, however, to be understood as insinuating a, doubt of the correctness of it; for we are inclined to think, that it is sustained by satisfactory reasoning in the decision of Kidd v. Montague, where it was first announced.
[2.] By virtue of the principle above stated, James A. Anderson had a right, notwithstanding the act of March 1st, 1848, to go on and-reduce to .possession his wife’s distributive interest in the slaves of her father’s estate ; and if .he did so in his life-time, a complete title vested in him, to the exclusion .of his wife. The division, by the concurring consent of all the' distributees,-may not, according to previous decisions of this- court, have -had the effect of vesting the respective distributees with the legal title. But, as the debts of the estate were paid, and. a final settlement of the administration had been. effected, the division, and reciprocal conveyances of the distributees, certainly had, at least, the effect of investing, each with the equitable title — Marshall v. Crow, 29 Ala. 278 ; Vanderveer v. Alston, 16 Ala. 494; Bethea v. McColl, 5 Ala. 308 ; Miller v. Eatman, 11 Ala. 609. A court of chancery would, upon a suitable application, have, ordered a division ; and those who were interested may, by-consent, do that which might have been acconq listed through the agency of a court of chancery. The wife of. James A. Anderson having, by the *687division and deed, acquired a title to. the slaves Jane and her children, even though it was purely equitable, and having possession thereafter, the husband, by virtue of hft right to reduce to possession his wife’s choses, acquired at least an equitable title, which is -not affected by the married woman’s law.
The executor was guilty- of a palpable breach of duty in surrendering the property thus held by his testator, and.; the court properly charged him on account thereof.
[3.] The executor wais -not. entitled to *a credit for the fee paid his counsel, .on account-, of services rendered in support of the attemptrto relieve himself from the charge for the slaves Jane and her children.* The litigation upon that subject was produced by his owsnerror, and by an attempt to obtain the sanction of that;- error by the court. For the fees of counsel in such a litigation, the estate oxight not to .be charged.- — Smith v. King, at June term, 1860.
[4.] If there was any error in making the allowance to the guardian ad litem,, .it was one which did not prejudice the appellant..
It is not necessary for us to notice- the rulings on questions of evidence. They have not been presented by counsel in argument; and it is very clear that the court has . committed no error in those rulings, which would have - changed the result.•
Affirmed.