tended with unusual severity continuing for three days, and resulting in the premature birth of a child, and causing a physical disability to the plaintiff which for a long time incapacitated her for the discharge of her household duties. That the defendant violated the law in his refusal to immediately leave the premises when ordered to do so there can be no question, and that his subsequent conduct as alleged was wrongful is equally certain. The action was properly brought in the name of the wife: Code 1896, secs. 2523, 2527. The suit is for an injury to the plaintiff, and not for a trespass to the realty as supposed by appellee. It is wholly immaterial under the circumstances alleged whether the ownership of the premises was in the plaintiff or her husband, although it is averred that the possession of the dwelling was held under a contract of lease made by the wife. In Watson v. Dilts, 116 Iowa, 249, 93 Am. St. Rep. 239, 89 N. W. 1068, 57 L. R. A. 559, it was said: 95 "Nor does it matter, in our judgment, that the trespass was committed on property belonging to the husband. It was her home as well as that of her husband, and any unlawful entry or invasion thereof which produced physical injury to her was a wrong for which she ought to recover."

Nor is it important that no physical violence was done her person. The bodily pain and suffering which she endured was in direct line of causation from the alleged wrongful act of the defendant: Armstrong v. Montgomery St. Ry. Co., 123 Ala. 233, 26 South. 349. In a case similar to the one under consideration the supreme court of Texas, in an opinion by Gaines, J., said: "That a physical, personal injury may be produced through a strong emotion of the mind there can be no doubt. The fact that it is more difficult to produce such an injury through the operation of the mind than by direct physical means affords no sufficient ground for refusing compensation in an action at law when the injury is intentional or negligently inflicted. It may be more difficult to prove the connection between the alleged cause and the injury, but if it be proved, and the injury be the proximate result of the cause, we cannot say that a recovery should not be had. Here, according to the allegations of the petition, the defendant has produced a bodily injury by means of that emotion, and it is for that injury the recovery is sought": Hill v.

Kimball, 46 Tex. 210, 13 S. W. 59, 7 L. R. A. 618. In the case of Brownback v. Frailey, 78 Ill. App. 262, it was said: "One who goes to the house of a pregnant woman and flourishes a whip, and makes threats in a boisterous manner, is liable for her miscarriage and sickness resulting from fright proximately occasioned thereby, which fright he must have observed by the exercise of ordinary care, even though he did not know of the condition of her health." To the same effect are the following cases: Watson v. Dilts, 116 Iowa, 249, 93 Am. St. Rep. 239, 89 N. W. 1068, 57 L. R. A. 559; Razzo v. Varni, 81 Cal. 289, 22 Pac. 848; Chicago & N. W. R. Co. v. Hunerberg, 16 Ill. App. 387; Newell v. Whitcher, 53 Vt. 589, 38 Am. Rep. 703. The plaintiff here was in her home, and had a right to the peaceful and undisturbed enjoyment of the same, and any unlawful entry or invasion thereof, 96 which produced physical injury to her, whether by direct personal violence, or through nervous excitement the proximate result of the wrongful acts of the defendant, was a wrong for which she is entitled to recover.

It follows from the foregoing views that the trial court, in our opinion, erred in sustaining the demurrer to the amended complaint, and for which error the judgment appealed from must be reversed, and the cause remanded. Reversed and remanded.

Haralson, Simpson and Denson, JJ., concur.

Damages for Fright and Mental Shock are discussed in the note to Gulf etc. Ry. Co. v. Hayter, 77 Am. St. Rep. 856. Nervous prostration arising from fright to a woman caused by stealthily entering her home in the night-time and committing a trespass on her husband's property justifies a recovery by her in damages against the trespasser: Watson v. Dilts, 116 Iowa, 249, 93 Am. St. Rep. 239, and see the cases cited in the cross-reference note thereto.

Where a Wife Sustains Personal Injuries through the wrongful or negligent act of another, her husband is entitled, by the common law, to recover such damages as he suffers from the loss of her services and society, and also the expenses of her sickness: Birmingham etc. Ry. Co. v. Linter, 141 Ala. 420, 109 Am. St. Rep. 40, and cases cited in the cross-reference note thereto.

HINTON v. FARMER.

[148 Ala. 211, 42 South. 563.]

TRUST-Legal Title, When Vests in the Beneficiary.-A conveyance to one person in trust for another vests the legal title in the beneficiary under the code of Alabama. (p. 63.)

HUSBAND AND WIFE, Acquisition of Her Title by His Adverse Possession.-A husband cannot acquire a prescriptive title to the lands of his wife while they hold joint possession. (pp. 63, 64.)

PRESCRIPTIVE TITLE in Favor of a Tenant by the Curtesy. The husband of a deceased owner of real property having as such a title therein as tenant by the curtesy cannot acquire prescriptive title as against the remaindermen. (p. 64.)

J. J. Mayfield and Foster & Oliver, for the appellant. Henry A. Jones, for the appellee.

212 TYSON, C. J. We entertain the opinion that the deed from Ezekiel Anders, Jr., to Ezekiel Wright, trustee for Elizabeth Hall, conferred no title upon Wright 213 to the lands conveyed by it, but that the legal title to them passed under it into the beneficiary named in it, Mrs. Hall: Code 1896, sec. 1027, and authorities cited under it. There was, therefore, no error in admitting it in evidence.

Under the undisputed evidence it cannot be doubted that the plaintiffs, who are the only heirs at law of Elizabeth Hall, deceased, are entitled to recover, unless the defendant's deceased husband acquired their estate by adverse possession. Elizabeth Hall, from whom they derived title by descent, when she married Hinton in 1856, was the owner of and in possession of the lands. After their marriage Hinton lived with her upon them until her death in 1863. After her death he remained upon them, being entitled to the possession as a tenant by curtesy until his death in 1902. In 1858 he acquired a deed to the lands from certain parties who had no title whatever in them. After his first wife's death he intermarried with the defendant Mary J. Hinton, and in 1868 made her a deed to them. These two deeds were offered in evidence by defendant as color of title, but were excluded by the trial court. The theory of the defendant seems to be that the deeds should have been admitted as tending to show adverse possession of the lands by Hinton, the husband. If it be conceded that the husband, under any circumstances, can acquire

title to the lands of his wife by adverse possession, he certainly cannot do so by having a joint possession with her. One of the essential elements of adverse possession is that the possession must be exclusive. "Two persons cannot hold the same property adversely to each other at the same time": Stiff v. Cobb, 126 Ala. 381, 85 Am. St. Rep. 38, 28 South. 402; Wells v. American Mortgage Co., 109 Ala. 430, 20 South. 136.

Nor was the subsequent possession of Hinton, after the death of his first wife, having life estate in the lands as tenant by curtesy, adverse to the plaintiffs, who owned the fee in the remainder. During his life at no time did their right of entry accrue. So long as his life estate in them endured, he was entitled to the possession; and it was not until his death that the right of the plaintiffs arose to sue for the establishment and recovery 214 of their interest: Edwards v. Bender, 121 Ala. 77, 25 South. 1010, and authorities there cited.

There is no error in the record of which the appellant can complain, and the judgment appealed from must be affirmed.

Affirmed.

Dowdell, Anderson and McClellan, JJ., concur.

The Possession of a Life Tenant is never deemed adverse to the remaindermen: Hanson v. Ingwaldson, 77 Minn. 533, 77 Am. St. Rep. 692; Pryor v. Winter, 147 Cal. 554, 109 Am. St. Rep. 162, and cases cited in the cross-reference note thereto.

Husband and Wife cannot Hold Adversely to each other while residing together on the same tract of land: Stiff v. Cobb, 126 Ala. 381, 85 Am. St. Rep. 38; Bader v. Dyer, 106 Iowa, 715, 68 Am. St. Rep. 332.

GRISWOLD v. GRISWOLD.

[148 Ala. 239, 42 South. 554.]

DEED, Delivery of to a Third Person for the Grantee.—A grantor may deliver a deed to a third person to be held until the grantor's death, and then delivered to the grantee, and such original delivery is good and vests title in the grantee, if there is no reservation of the right of the grantor to avoid or resume possession of the instrument. (pp. 65, 66, 67.)

WILL-Instrument in the Form of a Conveyance.-If an instrument was intended as a will and not as a deed, it must first be

proved and admitted to probate before it can have any operation. (p. 66.)

WILLS AND CONVEYANCES, Distinguishing Differences of. If an instrument cannot be revoked, defeated nor impaired by the act of the grantor, it is a deed, but if the title of the estate is dependent on his death, he retaining an unqualified power of revocation, it is a will. (p. 66.)

R. L. Harmon and D. S. Bethune, for the appellant.

J. D. Norman, for the appellee.

241 ANDERSON, J. While there was evidence that the grantor to the deed, who is the father of all the parties, informed the draftsman of the instrument that he wished to make a will, it is in form a deed; and, conceding that he signed it, knowing what it was, the question of delivery arises. "A grantor may deliver a deed to a third person, to hold until the grantor's death and then to deliver it to the grantee. Such a delivery is perfectly valid; but the deed must be left with the depository without a reservation by the grantor, express or implied, of the right to estop it or otherwise control its use": 9 Am. & Eng. Ency. of Law, 157, and numerous authorities there cited. Our own court, in the case of Fitzpatrick v. Brigman, 130 Ala. 450, 30 South. 500, speaking through Justice Tyson, said: "For so long as he reserves to himself the locus penitentiae, there is no delivery-no present intention to devest himself of the title to the property. We take it that the grantor need not expressly reserve to himself this right to repent; but if his act, upon which a delivery is predicated, does not place the deed beyond his control as matter of law then his right of revocation is not gone": Frisbie v. McCarty, 1 Stew. & P. 56; Foster v. Mansfield, 3 Met. 412, 37 Am. Dec. 154. There was evidence from which the jury could infer such a delivery of the instrument as the law requires to make it operate as a deed, and this question should have been submitted to them. The trial court properly refused the general charge requested by the defendants, and erred in giving the one requested by the plaintiffs.

Our attention is called in brief of appellee's counsel to the case of Richardson v. Woodstock, 90 Ala. 266, 8 South. 7, 9 L. R. A. 348, and especially to the following expression in the opinion: "A deed cannot be delivered 242 after the death of the grantor." This expression is in complete harmony with this opinion and all authorities on the subAm. St. Rep., Vol. 121-5