Friend v. Oliver

GOLDTHWAITE, J. The plaintiff below bases her right to recover the cotton sued for, as being the product of slaves in which she had a separate estate; and this estate was created, either by the will of Henry Minor, or by the will of Mrs. Minor. In this aspect, it is entirely immaterial whether Mrs. Minor took an absolute interest under the will of her husband, or whether she took a life estate with a power of appointment in favor of the children. If she took the first, she had the right to bequeath the slaves to the separate use of the legatee ; and if the last, the power was properly executed by will (Sugden on Powers, 217), and the giving to the separate use of the married daughters, was a more strict execution of the will of the donor. — Sugden on Powers, 514, 515. The difficulty, however, in the present case, is, that the wife cannot, at the common law, sue alone, and the section of the Code (§ 2131) which authorizes her to bring the action in her own name, does not apply to a case of this character. — Gerald v. McKenzie, at the present term. There being no trustee, the legal title passed to the husband (Gerald v. McKenzie, supra)„ and he alone would have the right to sue (Land v. Gibson, at the present term); and this being the case, the complaint could not be amended, by striking out the name of the wife, and inserting that of the husband. — Leaird v. Moore, at the present term. [535] As, therefore, the action was improperly brought by the wife, 1yho had no legal right of action whatever, and could not recover under any circumstances in the present action, the errors of the court, if there was error, cannot be regarded as prejudicial to the plaintiff. Judgment affirmed.