#### WILLIAM A. WHITFIELD vs. JOHN B. HURST.

Th® will of a married woman cannot be made available, as a will, in Equity, having been first established as a testamentary instrument in the. Court of Probate.

After such probate, the Court of Equity is still to see that the instrument is of that kind, by which the feme covert can dispose of her property.

A, Court of Equity has no right to instruct the Court of Probate, as to the proper construction to be put upon marriage articles, and whether by them the feme covert' is or is not authorized to make a will.

The course in the- Court of Probate is, where the wife assumes the right to make a will, and the right is questionable, to pronounce for the will on proof of the factum, and leave it to the Court of Equity to determine definitely, whether she had such an interest or authority as she could dispose of or execute by will

When, before such probate, a bill is brought to enforce the alleged will, it must be dismissed; and the Court will not hold it up, to give the party an opportunity of propounding the will in the Court of Probate.

The case of Newlin v Freeman, 1 Ircd. 514, cited and approved.

This cause, having been set for hearing, at the Spring Term, 1844, of Wayne Court of Equity, was transmitted by consent to the Supreme Court.

The following are the material facts of the case :

The defendant,, and Sarah B. Whitfield, a widow, being about to intermarry, entered into articles on the 6th of April, 1826, and were then married. The bill charges, that, according to the true construction of the articles, a separate estate in her property, consisting of a number of slaves and other things, was secured to Mrs. Hurst, with certain benefits from a part of the income of the property to the husband during the marriage, and that the wife had the right of disposition by will or otherwise, after the coverture. Or, if such be not the construction of the articles, as drawn, the bill charges that such was the intention of the parties, and that the articles failed to express the same through mistake *243or through the fault of the defendant, who undertook to have them properly drawn.

In July, 1839, Mrs. Hurst executed an instrument purporting to be a will made under a power in her marriage articles, in which she gave to her son, the present plaintiff, sev-eral negroes specified, and gives the residue of her estate to her husband, and appointed him and another, executors. She died early in the year 1840, and in August of that year, the defendant, and the other person having refused the office of executor, the plaintiff propounded the instrument as his mother’s will, when the defendant opposed the probate, and an issue of devisavit vel non was made up. On the trial, the defendant insisted, that his wife had no right to dispose of the negroes after her death, as the articles only secured to her a separate estate during her life, and no longer, and conferred on her no power to bequeath or convey them after-wards ; and the Court having so decided, the plaintiff withdrew the instrument, and then filed this bill, in which he prays that the articles may be executed according to the true meaning, or, if necessary, that they may be reformed so as to be made conformable to the intention of the parties as before stated, and the defendant held to be a trustee for the plaintiff, and compelled to deliver and convey the slaves so bequeathed to the plaintiff, and account for the profits.

The answer states, that the parties did not mean to restrain or encroach on the marital rights of the defendant, except by securing for the wife a certain and adequate maintenance during her life, and therefore the articles gave her a separate estate for that period; but that it was not intended she should have the slaves absolutely as her separate property, or should have any power of disposition over them by will. The answer insists, that the articles as drawn, accord entirely with the agreement of the parties, and that they were read and perfectly understood by his wife, before she executed them.

The articles are proved by the subscribing witness, and exhibited, and the instrument, alleged to bé a will, is proved to be all in the hand-writing of Mrs, Hurst, but no account *244is given of its being deposited with any person, or found amon§ *ier valuable papers or effects. A number of depositions were taken, as to the declarations of the parties before an(j a|-ter ^ marriagej as †0 tlieir intentions in regard to the form and meaning of the marriage articles. But as the decision of the cause does not turn on them, it is not thought of any consequence to notice them.

Badger, J. H. Bryan, and Mordecai for the plaintiff.

Henry and Iredell for the defendant.

Ruffin, C. J.

It is now settled beyond doubt, that the will of a married woman cannot be rendered available as a will, in Equity, without being first established as a testamentary instrument in the Court of Probate. Note to Bayley v Stubington, 2 Lee’s Eq. Rep. 537. Douglass v Cooper, 3 Mylne & Keene, 378. Newlin v Freeman, 1 Ired. 514. The Court of Equity is concluded by the decision of the Court of Probate, that the instrument is or is not a will, because, upon that question, the Court of Probate is in every case the' exclusive judge. The Court of Equity can no more be called on to construe and enforce the will of a feme covert before probate, than the will of any other person. After probate, indeed, the Court of Equity is still to see the instrument is of that kind, by which the feme covert can dispose of the property.

But it is said, that, it is the province of this court to construe the ¡articles, and therefore that it ought to make a declaration ; that under them or the original agreement, .Mrs. Hurst had the right to make a will, in order to establish that right to the court of probate. We, however, think otherwise. This court has no power to instruct the court of probate upon that point; for it necessarily enters into the inquiry, whether the instrument is a will, since, unless she have a separate estate or a power of appointment by will, a feme covert cannot make a will. Each court must therefore act for itself, as it is entirely competent to do. The course in the courts of probate is indeed settled, when the wife as*245sumes the right to make a will and the right is questionable and doubtful, to pronouce for the will, on proof of thejfacturn, and leave it to the Court of Equity, as a court of construction and disposal, to determine definitely, whether she had such an interest or authority as she could dispose of or execute by will. Braham v Burchell, 3 Addam 243. Therefore, before this court can take a step towards the relief of the plaintiff, he must come here with a probate of this paper as a will.

But it was further said, that the cause should stand over to allow time to procure a probate, as was done in Ross v Ewer, 3 Atk. 160. Leave was given in that case, because the doctrine touching the separate estates of married women and wills by them had not then been so thoroughly considered, and the proper proceedings settled, as it has since been. There has been no doubt upon the law of the case for a long time past; and, therefore, the party ought to have taken the right way at first. Besides, the plaintiff made an effort, and the court of probate in the first instance, in effect, pronounced against the instrument, and the plaintiff abandoned it, without carrying the question to a higher court. If the plaintiff should still think it worth his while, he may yet endeavor to get a probate ; and if he should succeed, he will then have matter for a bill to which the present decree will be no bar.

Pee Curiam. Bill dismissed.