Rogers , 11 Me. 303 ( 1834 )

Mellen C. J.

delivered the opinion of the Court.

It was admitted, at the argument of this cause, that the property described in the will in question, belonged exclusively to John Grace, and that he died sole seised thereof; and that the will was executed, published and declared to be his last will and testament, in the manner stated in the attestation of the subscribing witnesses. For some strange reason, Hannah Grace, then the wife of John Grace, was joined with her husband in the character of a devisor; and this joinder is the objection to the probate of the will. The 8th reason of appeal was abandoned; and none but the 2d and 3d, which amount to the same thing, were relied upon. The supposed intentions of the said John Grace, alluded to in the 5th, 6th and 7th reasons of appeal, and the arguments in relation to them, are not subjects of our consideration, sitting as the Supreme Court of Probate. It is said that the will in question was never published as the will of John Grace alone, but as his and his wife’s jointly. She had no right to make the will. Her joinder can have no effect upon the legal and disposing powrer of the husband. The will is his in the same manner as though she had not signed it. She was a mere cypher in the transaction, and all her declarations and acts must be rejected as surplusage. The argument of the counsel for the appellants is founded on an assumed fact which is admitted to have no existence, namely, that the husband and wife were joint-tenants oí the property devised. And he has, in pursuing this idea, relied on an expression of Lord Mansfield in the case of the Earl of Darlington v. Pultney, Cowp. 260, in these words. “ Now there cannot be a joint-will.” It is true that joint-tenants cannot make a will which can operate jointly; for the instant either dies, the principle of survivorship, vests the whole estate in the survivor : and if such a will can have any operation in law, (and it seems it cannot, 4 Kent. Com. 360,) it cannot be as a joint will. Whether his lordship’s expression was used in reference to the above principle of law, or to the particular facts of that case and the manner of executing certain joint powers which was the subject then under consideration, is of little importance ; as it can have no influence in the decision of the case before us.

We are all of opinion that the decree of the Court of Probate must be affirmed ; and the cause remitted to that Court for further proceedings according to law.