Burton v. Holly , 18 Ala. 408 ( 1850 )

CHILTON, J.

The question in this case is, whether a feme covert can make a valid will of her choses in action to her husband, with his concurrence. The reason assigned why she cannot, by the cases which deny her the power, is, that being sub potestate viri, the law will presume that the husband coerces her to the act, and holds the will invalid, because she is not a free agent. Since the decision in Fettiplace v. Gorges, 1 Ves., jr., 46, it has been well settled, that a feme covert may dispose of her separate estate, as though she were a feme sole, and this without the husband’s consent. She takes it, say the books, with all its privileges and incidents, one of which is the jus disponendi. — 1 Jarm. on Wills, 33; Jacques v. Methodist E. Church, 17 Johns. 548; 2 Hagg. Ecc. Rep. 84, (S. C. 4 Ecc. Rep. 33.) She may then, possessing this right, bequeath such personal estate to the husband. Now is it not manifest, that the husband would have many more inducements to exercise an undue influence over the wife to obtain a will, bequeathing to him her separate estate, to which he could not otherwise succeed, than he would have in procuring a will of her choses in action, which he has a right to reduce into possession, during the coverture, and so become sole owner, and which he may, also, release? To my mind, it is clear, that while there may be strong inducement on the part of the husband, in the first case supposed, there can usually be but little in the latter. Upon what principle then, can we hold the will valid in the one, wherein the objection might with plausibility apply, and deny her power to make a will in the other case, where the inducement to an improper exercise of the marital authority is cut off by the power vested in the husband of becoming the owner of the subject of the bequest in a different manner? I see no reason for the distinction, and as reason is the life and soul of the law, I am unwilling to recognise a rule, which, in my opinion, not only fails to conform, but is directly opposed to it. If the wife, by the husband’s concurrence, may will her choses in action to a stranger, to any one but the husband, then, perhaps, in most cases she would be denied the power of prefering the desired object of her bounty. I have looked into the cases, and I think we violate no established rule of law, in holding that the wife has the power to make such will as the one before us, in respect to her choses in action. Decree affirmed.

■ DARGAN, C. J.

All the authorities agree that a married woman, with the consent of her husband, may make a will of her choses in action in favor of a, stranger. — Roper on H. & Wife, 170; Wms. on Exr’s, 40; Lomax on Exr’s, 12. But I have found, no case in the English books, in which the question arose .whether she could will them to her husband. The reason, X apprehend, why no such, case is to be found is this, that by the law of England, the husband is entitled to administer his wife’s choses in action, not reduced to possession during her life, and .when he reduces them to possession by virtue of his letters: of. administration, they become absolutely his own, consequently a will by the wife, bequeathing them to him after her death, would be to give him what the law itself gave him. But the law.of this State, differs from the law of England upon this subject. Here, unless the husband reduce the wife’s choses in action into.possession during the coverture, he can claim no beneficial interest in.them, nor is he entitled,to administration upon her goods, in opposition to the rights of her next of . kip.-r-Strader v. Randall, 17 Ala. The husband then may .tak.e.an interest.under.the will of his .wife, in her choses in action, in this State, which the law would not give him, if she is capable of making a will in his favor, and I see no reason why she should be held capable with her husband’s consent, to will them to a stranger, but incapable of bequeathing them to him. No one will deny, I apprehend, that she may make a will in favor of her husband of her separate estate, unless she is restrained from doing it by the instrument creating the estate, and there appears to me as great objection in allowing this, as in allowing her to make a will in his favor of her choses in action, can we give a well founded reason why a married woman may bequeath her separate property to her husband, but not her choses in action■ ? He would, if he survived her, take an interest under both wills, and is it not as reasonable to suppose that the one was obtained by undue influence as the other? To deny the right of the wife to make a will in favor of the husband in the one case, on the ground that the will may have been obtained by coercion or the exercise of undue influence, would apply with equal force in the other, and she ought to be altogether incapacitated from bequeathing her property to her husband, or she ought to be allowed to do it in every case, where he could take under the will. The husband may be the person, to whom the wife, above all others, would wish to give her property, and there may be cases in which it would be but a simple act of justice for her to do so. She should not be deprived of the power of gratifying her wish, by giving her choses in action to her husband, when we would permit her to dispose of her separate property in his favor. In my judgment there is no reason for such a distinction, and it should not exist. The wife has the undoubted right to make a will of her separate estate in favor of her husband, which if freely and voluntarily done, will pass the title to him, and she may equally make a will in his favor when the subject matter of it is her choses in action.

Parsons, J., dissented, but delivered no opinion.