Cavenaugh v. Ainchbacker ( 1867 )

Warner, C. J.

The main question presented for the judgment of the Court in this case is, the right of Mrs. Uaigley, a married woman, to devise by will the property specified in the record, under the state of facts presented therein. A married woman may make a will in this State, when having a separate estate absolutely, or an estate in expectancy her husband consents to her disposing of the same. Revised Code, Section 2375. The husband’s consent is not necessary except to dispose of an estate in expectancy. In Liptrot vs. Holmes (1st Kelly’s Rep. 389) this Court recognized the principle, that a feme covert might dispose of her separate property, that the moment property can be enjoyed, it must be enjoyed with all its incidents. The property in controversy in that case, was personal property, but we think there is no sound distinction between the right of a feme covert to dispose of her separate personal estate and her separate real estate by will, inasmuch as both estates under our law are placed on the same footing as to distribution : the more especially in this caso, as the personal earnings of the wife were received by her in money, and invested in real estate by the consent of her husband. The errors assigned are, to the charge of the Court as given to the jury, and the refusal of the Court to charge the jury as requested by. the counsel for the caveators. The Court below charged the jury “ that if the property disposed of by the will was the separate estate of Mrs. Naigley, purchased with her own earnings as a midwife, with the consent of her husband, then she had the right, although a feme covert, to dispose of the sainé by will without the assent of her husband. If) therefore, the jury should believe from the evidence that Mrs. Haigley had earnings separate from that of her husband and with his consent, and that she purchased the property in controversy and paid for it with her own money, and took the sheriff’s deed therefor to herself, and all this with the assent of her husband, then the property became her separate estate, and she had the right to devise the same by will without her husband’s consent, and in such event, the fact that the husband procured a change of the title after her death, cannot effect the validity of her will so made.” The jury found a verdict in favor of the propounder of the will — which establishes the fact that the property devised by Mrs. Naigley was her separate property. We find no error in the charge of the Court below to the jury upon this point in the case; the question was fairly submitted to them upon the evidence, and this Court is satisfied with their verdict. Nor is there any error in that part of the charge of the Court relating to the acts of the husband in procuring a change of title after Mrs. Naigley’s death, so far as the validity of her will is concerned. The property devised by her was her separate property, or it was not, at the time of making her will, and at the time of her death. The subsequent conduct and acts of the husband manipulating that title, either for his own benefit or that of others, after her death, could not 'affect her right to dispose of her separate property by will, or invalidate her act in doing what she had the lawful right to do, with or without his assent, — the more especially with Ms assent — at the time the will was executed. The first request to charge the jury was properly refused by the Court below, for the reason that it requires a definite expression of opinion of the Court to the jury as to the effect and weight of the evidence, which the receipt upon the jl fa. ought to have upon their minds. The Court admitted the evidence as competent for the consideration of the jury, and that was all the Court had any right to db with it; the effect and weight of that evidence was a matter exclusively for the consideration of the jury. The receipt upon the/, fa. speaks for itself, and it was not for the Court to say whether it was a proper receipt to be given, or not; that was a question for the jury, and it was also a question for the jury to say what it tended to prove, and not a question for tire Court to decide.

The second request to charge the jury was also properly refused, in view of the issue then before, the Court for trial. Whatever rights the Columbus Iron Works may have to the property as purchasers from Jacob Naigley, the husband, may be hereafter asserted in a proper case made before the Court. The question upon trial was, whether Mrs. Naigley had the right to dispose of the property by will as her separate estate. The title to the property devised by the will, as between the devisees and the Columbus Iron Works, was not before the Court for trial.

Let the judgment of the Court below be affirmed.