#### JOHN NEWLIN vs. RICHARD FREEMAN, & al.

The probate of a will of lands by a married woman, cannot be had in the County Court.

A married woman can only make an appointment in the nature of a will of real estate, under apower of appointment specially given in some deed, and that appointment the Courts of Equity have alone the jurisdiction to determine on and enforce.

But a married woman, by her husbqnd’s consent, can make a will of her personal property.

And where he has covenanted in a marriage settlement, that she may make such will, but withholds his consent from the particular will she snakes, this is still her will as to personal property; sufficient, at least to repel his right of administering, and to authorize the granting of administration to her appointee, with the will annexed.

In case of appointments, authorising married women to make a will of personal property, the appointment must be proved as a will in the proper court, and then is regarded in all courts as a will.

> The following is the case reported by the Judge below to the Supreme Court,

This was an issue devisavit vel non, tried at Orange Superior Court of Law, at Spring Term, 1841, before his'Hon- or, Judge Pearson, between John Newlin, who propounded the paper writing, as the last will and testament of Sarah Freeman, and. Richard Freeman and others, who entered a a caveat thereto. It was admitted that Sarah Freeman, at the time of making the.supposed will, and up to the time of her death, was the wife of Richard Freeman, one of the caveators. It was also admitted, that marriage articles had been executed by them, before their intermarriage, by which among other things, it was stipulated, “that the said Sarah shall have, use, possess and enjoy all her property of a per*515sonal nature, consisting as well of the negroes now in sion, as those which, tíiay hereafter come into existence of their increase, with her choses in action of every kind and description, free from any ■ molestation or hindrance from him or any person claiming under him — and also the hire of the said negroes, and the accruing interest upon the said choses in action. And the said Richard Freeman doth further covenant and agree that the said Sarah shall have full power and authority to dispose of during said coverture, the whole or any part or portion of said property, by deedj or will. And the said Richard Freeman doth further covenant and agree to, and with the srud Sarah, to relinquish, and by these presents doth relinquish all right, which he may or might by the -laws of the country possess, in case he survive the said Sarah, to succeed to her personal property as her next of kin.” "And it is further agreed by the parties hereto, that the said Sarah shall have full power and authority, during coverture, and by her last will and testament, to dispose of her said lands to whomsoever she shall choose; and, in case of failure by said Sarah to make such disposition by her last will and testament, such land upon her death shall descend to her heirs.” These articles were duly proved and recorded. The counsel for the caveators insisted that the said Sarah could not in law make a will, disposing of either real or personal property. It was thereupon agreed that this question should be reserved, and the issue submitted to the jury, free of this difficulty, and, if the jury found the issue in favor of the caveators, the verdict should be so entered; but if the jury found the issue in favor of John Newlin,the verdict should be subject to the question reserved, which should be presented by a case agreed. The plaintiff proved, by the two subscribing witnesses to the will, the formal execution thereof, that they signed the paper in her presence and at her request —that she signed in their presence and acknowledged the paper to be her will; and that she was then of sound mind. The said witnesses proved that Newlin requested them to go up to Freeman’s — that Richard Freeman, the husband, was absent — that neither witness read the paper or knew what *516 it contained--that it was so folded down that they could not *ts contents — they had known her along time, but had no intimate acquaintance with her — and one of them was asked by her,’ a year or more before that, if he would witness her will and keep it secret — she enjoined secrecy on both at the execution.

The defendants then offered^ evidence to shew that the will was written at Newlin’s — that no one was present at the time but Newlin and the witness, Mr. Jackson, who wrote the will — that Newlin dictated the whole of the will —that the witness who wrote the will, had received no instructions from Mrs. Freeman for the writingof a will, or this one in particular, nor after the will was written did he ever speak to Mrs. Freemau, nor she to him on the subject of her will. The defendants further offered evidence, shewing that Sarah Freeman could not read English, nor write the language- — -that she was a German woman, and could read German — that she was ignoraut — and, one witness, Dr. James Webb, said, would be easily imposed on by one in whom she had confidence — that she was 65 or 70 years of age — that she and her husband, Richard Freeman, lived together on terms of affection — that she had declared, before making the will and afterwards, that, when she was dead, her negroes should be free, and serve no one.

The plaintiff then introduced two other wills, written by Newlin for the supposed testatrix, previous to her márriage with Freeman and during her widowhood, devising and bequeathing, her whole estate to Newlin, and proved, further, that she had great pecuniary confidence in Newlin, and entrusted him with the management of all her funds. The subscribing witnesses to the wills introduced had never heard them read nor knew what they contained. Newlin was a member of the Quaker Society. Mrs. Freeman had always said that it was the intention of her former husband and herself to set the negroes free, and send them to a free state or country —that she could not do that, and she intended to give them to some steady old Quaker, who would not own slaves, and that both she and her first husband had repeatedly declared *517that their relations never should have their property — she was of a fixed and decisive character — she was never heard by these witnesses to speak of her disposing of her property after she married Freeman.

The defendants then proved by Freeman and Crawford, that she had said she intended to give a part of her land to one of the sons of Richard Freeman, her husband, and another part to a young man named Crawford, whom she had raised, and the personal property, with the exception of her slaves, to her husband — that her slaves should not belong to any one, but go free.

His Honor charged the jury, in substance, that if the execution of the will was obtained by undue influence, by fraud or imposition, they would find in favor of the defendants — that what amounted to such fraud, undue influence or imposition, as would be sufficient to set aside a will, were questions of law for the. court, and the court then explained these terms to the jury — that whether such fraud, influence or imposition had been made out were questions of fact for the jury — that it was not necessary to have direct proof, but it was sufficient if, from the evidence, the suggestions and arguments of counsel, and their own sense and observation and knowledge of human nature, the jury -were satisfied as reasonable men, that the paper writing had been obtained by und ue influ ence, fraud or imposition — that after the formal requisites of a will had been proved, it was then for the caveators to make out undue influence, fraud or imposition — that the existence of these facts, like every other fact, must be poven, either'directly or by such circumstances as satisfy the jury of their existence. The jury found, upon the issue submitted to them, that the paper writing was the last will and testament of Sarah Freeman dec’d.

The defendants’counsel then moved for anew trial, alleging errors in the instructions of the Judge, upon the questions of fraud, undue influence and imposition; for, although they admitted the definitions of those terms by the court were satisfactory, his Honor ought to have instructed the jury, that, if they believed from the evidence, that under the circumstances of the case a fraud was easily practicable, they might say *518they were not satisfied one was not practised, and thence *ts exl-stence unless the contrary be clearly shown — . that it was in the power of the jury and it might, as reasonamen; fog their duty, for fear of fraudulent practices and in prevention of them, to find a fraud or give a verdict, such as they would, if they had found a fraud, where there is a defect of proof to negative it — that his Honor did not inform the jury of the full extent of their power over .the paper writing offered as a will, for, as they insisted, in wills the jury had more liberty to infer fraud than in other cases. His Honor refused to grant the motion for a new trial.

The question reserved was then presented by this case agreed. Some short time before their intermarriage, the said Richard and Sarah, executed under their hands and seals articles of marriage agreement, the contents of which, so far as they regard this case, have been already stated. Afterwards in!835, the said Sarah, being then under coverture, executed the paper writing found by the jury to be her last, will and testament, which purports to dispose'of both real and personal estate, which estate, as well the personal as the real property, is the property reserved to her by the articles of agreement— that at the time the said Sarah executed the said paper writingthesaid Richard her husband, had no privity or knowl edge of the same, and that the existence of the said paper writing did not come to his knowledge until in theyear 1839, a few days after her. death, when the said Richard objected to the same and continued his objecting up to the time it was offered for probate, when he and the others, the heirs at law of the said Sarah, entered their caveat. Sarah Freeman never had a child

As to the personal property, the court was of opinion that Richard Freeman, having given to the said Sarah the power to dispose of the personal estate, to which he would otherwise have been entitled by the marriage, was barred by the marriage articles; and that it was according to the course of the court to admit the paper writing to probate, as the foundation of further proceedings in equity. It was thereupon considered by the court that the paper writing be admitted to probate, as the last will and testament of Sarah Free*519man, disposing of the personal estate therein mentioned, and that the same be so certified to the County Court.

As to the real property, the court was of opinion, that femes coverts, being excepted in the statute of Henry 8th, had no power to devise real estate, and that the heirs at law, not being parties, were of course not affected by the marriage articles. It was therefore considered that the paper writing, so far as it disposes of real estate, should not be admitted to probate as the last will and testament of Sarah Freeman, disposing of the real estate therein mentioned, and that the same be so certified to the County Court.

With which judgment, as to the personal estate and the refusal of the motion foraneivtrial, the caveators being dissatisfiied, prayed an appeal to the Supreme Court. From the other part of the judgment, the plaintiff appealed.

Waddell, for the plaintiff,

cited the following authorities; 2 Chitt. Blac. 280, n. 3, 2; Ves. Sen’r. 191; 2 Eden. 239; 1 Bro. Par. Ca. 486; Ambler 565; 2 Roper Hus. & Wife 180; 4 Kent’s Com. 505; 3 Ash. 160; 1 Ves. jr. 46.

Saunders contra.

Gaston, J.

We are of opinion that none of the exceptions, urged by either of the parties to the judgment below, can be sustained, and that the law has been fairly expounded and correctly administered upon the trial.

The instrument upon which the issue was made up could not be found a will oflands, because the supposed testatrix was a married woman, and therefore in law incapable of devising lands. By the common law of England, after the conquest lands could not be devised, but the statute of Wills 32, H. 8, ch. 1, explained, because of abundant caution, by Stat. 34, H. 8, ch. 5, enacted that all persons seized in fee simple (except femes coverts, infants, idiots, and persons of non-sane memory) might devise to any other person, except bodies corporate, two thirds of their land held in chivalry, and the whole of those holden in socage. This was the law brought over to this country by our ancestors, and, as all tenures here before the revolution were by free and common *520socage, this power of devising applied to all lands within the colony- Ma«y ^aws have since the revolution been enacted by our Legislature on the subject of devises, but none either extending or abridging the power of tenant in fee simple, such as it existed at the revolution. A married woman, neither in the country of our ancestors nor with us, ever had capacity to devise. It is true that she might by means of a power, properly created, appoint a disposition of her real estate after death, which power must be executed, like the will of a ferae sole, and is subject very much to the same rules ot construction. But the act, if good, is valid as an appointment under a power, and it is not a devise; for to hold it such would be to give to a married woman a capacity which she did not possess at common law and which no statute has conferred upon her. The question here submiteed, so far as the lands of the testatrix were concerned, was not whether a valid appointment had been made, for that question could not thus be tried; but whether the paper writing produced was a good will. No finding of the jury in this case, nor adjudication thereon, can prevent the propounder of this will from setting up the disposition of the lands, contained in it, as an appointment in equity, should he think proper to bringit forward as such, before the proper tribunal, against the proper parties. When thus preferred, its validity as an appointment may be tried as such court shall direct, but not until then. Yery different, however, is the law on the subject of the disposition of personal estate to- take effect after death, by what is properly called a testament. Whatever fluctuations in the law might have existed upon the subject of testaments at an early period, a general power to dispose of chattels by testament existed long before the statute of wills, in every part oí England, except in the province of York, the principality of Wales, and the city of London, where by custom, if the testator had wife or children, the power was restricted to a part only of the testator’s goods. The validity of a testament was by the law a question exclusively for the determination of the ecclesiastical tribunals, and these tribunals, in passing upon that question, were governed principally by rales drawn from the civil law. They *521held that a married woman, by her husband’s license, might make a testament, and where he had covenanted on. marriage to allow her that license, but withheld it from the particular will in question, it was still her testameat, sufficient at least to repel him from the right of administering on her effects, as he was entitled to do in case of intestacy, and to authorise the granting of administration to her appointee cum testamento annexe. So exclusive is the jurisdiction of these courts over the subject matter of testaments, that when a power is secured to a married woman oí making an appointment of personal estate by will, no court can give effect to an appointment under that power, until the writing purporting to contain the appointment has been first proved in the proper Ecclesiastical Court as a will. And when it has received this probate, and unless this probate be called in, all other Courts are bound to regard the writing so proved as a will. (Ross v. Ewer, 3 Atk. 160. Cothay v. Sydenham, 2 Bro. 302. Rich v. Cockell, 9 Ves. 369. Stevens v. Bagwell 15 Ves. 139. Douglas v. Cooper, 3. Mylne v. Keene, 378, 9th Con. Ch. Rep. 85.) Such is the law which.- obtained here upon the first colonization of of this country. Instead of the Ecclesiastical Courts, other courts were invested with jurisdiction over testaments, but the change oí jurisdiction left the law of testaments unaltered. Who can make a testament — what is a testament- — , the necessity and effeet of probate of a testament — are all questions to be decided by that law, having regard to the modifications thereof, which may have been made by legislative enactments. We know oí none such effecting the .question now under consideration. See Harvey v. Smith, 1 Dev. & Bat. Rep, 186.

It has been urged as an objection to his Honor’s instructions, that therein he omitted to inform the jury, that, because of the facility with which a fraud might be practised upon a testator, under circumstances like to those shewn in the case before them, and because of the danger of such frauds being practised with impunity, unless a jury should infer fraud from the concurrence of many suspicious circumstances, and *522a defect of evidence to repel the inference, they ought not' to require absolute proof of fraud. But to this objection it is a conclusive answer, that no such special instruction appears t0 have been prayed upon the trial, and the want of it is first brought *to notice upon the motion for a new trial, when it was urged as a reason in favor of such motion. But, moreover, it is not improper to add, that this, which is insisted on as a fit matter for a special instruction, is an argument proper to be addressed to the discretion of the jury as rational men, and not a principle of law to be given to them in charge..— Downey v. Murphey, 1 Dev. & Bat. 82. It is to be presumed, that as an argument it was urged to the jury; and if so, it y/as not the duty of the Judge to repeat it. But if the fact be that the Counsel failed to urge it, the province of the Judge was not to supply arguments for either party. His duty is fulfilled if he “ state in a full and correct manner the facts given in evidence, and declare and explain the law arising thereon.” Revised Stat. Ch. 31, Sec. 136. Nothing appears on the Record to warrant a belief or doubt even that this was not done.

The judgment must be affirmed. As both parties appealed from the judgment of the Superior Court, and that judgment is affirmed in toto, we do not adjudge costs in, this Court to either. If the Clerk’s costs have not actually been paid, he may collect them by execution under the provisions of the 24th Section of the 105th Chapter of the Revised Statutes.

Pee Curiam, Judgment accordingly.