majority">GOM3THWAITE, J. —

When this case was last here (21 Ala. 302) we held, that the husband, after the death of his wife, could not be required to account for the income of her separate estate reeeived by him during coverture ; and this decision is conclusive upon us in the present case. — Price v. Price, 23 Ala. 609, and cases there cited. It is urged, however, on the part of the appellant, that the husband was bound to account for the hire of the slaves forming the separate estate of the wife, accruing from the time of the marriage— the 31st March, 1849 — until the 1st January, 1850, for the *200reason, that this hire was included in notes given to the wife', before marriage, and must, therefore, be regarded as of the corpus and not the income of her estate. Suppose a marriage settlement had been made, by the terms of which the wife was to hold the slaves, and take the hire up to the time of the marriage, to her sole and separate use ; and the husband to receive the hire, which should accrue during coverture?— "Would it be doubted, that under such circumstances the husband would be entitled, as against the wife, to that portion of the hire which accrued after the marriage ? The third section of the act of 14th February, 1850, (Acts 1849-50, p. 63), makes just this contract. It absolves the husband from liability to account for the profits during coverture; so that the only question is, whether the amount received was for the labor and services of the slaves during the marriage ; if it is, then, by force of the statute, there is no liability. That it was received by the husband upon a contract of hire made by the wife before marriage, does not change the nature of the fund : it is still the profits of the separate estate accruing during coverture.

It is insisted by the appellant, that, as the wife died intestate only as to a portion of her estate, the husband was not entitled to one half of the personal property undisposed of by her will; but this position cannot be sustained. Under the acts of 1848 and 1850, the husband as a distributee is entitled to take absolutely one half of the wife’s personal estate, unless she makes a different disposition of it by will; and a case of partial intestacy falls. under the general law applicable to cases of that character, which provides for distribution of the property not bequeathed as if no will at all had been made. — Blay’s Digest 597 § 7 ; Denson v. Autrey, 21 Ala. 205.

Neither was there any error in the action of the court, allowing to the husband, as executor, the payments he had made out of her estate for debts incurred by her before marriage; the record showing that these debts were a proper charge against such estate in the hands of her guardian. Under the acts to which we have before referred, the husband, by virtue of the marriage, occupies the position simply of trustees of the property belonging to his wife; and certainly a trustee *201might well out of the trust estate pay debts which were a legitimate charge upon it, before he became the trustee ; and if he paid those debts out of his own money, he should in justice be entitled to look to the property to which they were properly chargeable to reimburse himself.

The ruling of the probate judge on the questions considered, being in conformity with the law, the judgment is affirmed.

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