Wells v. Bransford

RICE, C. J. It is well, settled, that where there is an agreement between husband and wife, before marriage, that she shall have to her separate use either .the whole or'particular parts of her personal property, she may dispose of it by her will, without the consent of her husband. — 2 Bright on Husband and Wife, 66, 120; Peacock v. Monk, 2 Vesey, sr., 191; Fettiplace v. Gorges, 1 Vesey, jr., 46; Rich v. Cockell, 9 Vesey, 369; Newlin v. Freeman, 1 Iredell’s Law Rep. 514. See, also, Burton v. Holly, 18 Ala. Rep. 408, in connection with Scammell v. Wilkinson, 2 East’s Rep. 552. The legal evidence in the cause, under an application of the rules provided by law for ascertaining its weight and effect, convinces us that there was such an agreement between Abram Bransford and his' wife Elizabeth before their marriage, in relation to the-slave then owned by her; that it was in writing, and signed by both of them, and duly executed before the marriage; and that, after the marriage, lie obtained possession of it, and has either destroyed or suppressed it. Notice to produce it on the trial was given before the trial. He did not produce it, but produced an instrument signed by himself alone, which is proved to be materially different from it. Secondary evidence of its contents was given by two witnesses, Mrs. Lowry and Peter T. Hurt, who had seen it several times, and read it. Both of them testify that, according to their best recollection, it was signed by said Elizabeth and by said Abram. Mrs. Lowry testifies, that she saw it “ before [213] they were marriedthat the girl 'Louisa, owned by said Elizabeth at that time, was secured by said agreement “ to the separate use of said Elizabeth”; and that she ‘does not recollect that any other negro was mentioned in it. Peter T. Hurt testifies, that “ he has a distinct recollection of the provisions of said contract, though he does not recollect the words”; “ that the said contract related to the negro •property of said Elizabeth, and reserved the right and title of said property to the said Elizabeth, and the said Bransford gave up whatever title he might have in said property as the husband of the said Elizabeth”; that his best recollection is, that it “ reserved the said property to the sole and separate use of the said Elizabeth”; thathe has' read it “ a great many times”; that he does not know whether it embraced all the negroes or not, “but his best recollection is that it embraced dl.” If there be any obscurity or uncertainty in the secondary evidence of the contents of the agreement executed by the said Abram and the said Elizabeth, it arises from his suppression or destruction of that agreement. Suppression is tantamount to spoliation, in respect to the presumptions against the party suppressing. And as he is here the contestant, the following maxim applies to him in full force, “ Omnia presumuntur contra spoliatorem.” — Bowles v. Stewart, 1 Schoales & Lefroy, 209; 2 Phil. on Ev., (edition of 1839,) 293; 3 ib. 1192, 1193, 1195, 1216, 1220, 1222, 1224, 1234; Jackson v. McVey, 18 Johns. 330; Life & Fire Ins. Co. v. The Mechanics' Fire Ins. Co., 7 Wend. 31; 1 Starkie on Ev. 34. The presumptions which the law requires to be made against him, 'from the evidence adduced by the proponent of the will, arc not overturned by any evidence in the present record. The proponent having declined to offer as evidence the answers of the contestant to the interrogatories propounded to him for discovery under the statute, the court could not, without error, consider or treat any of such answers as evidence for any purpose on the trial: Br. Bk. at Montgomery v. Parker, 5 Ala. Rep. 731. It is unnecessary now to decide any thing as to the admissibility of the instrument signed by the contestant and dated 27th June, 1852, or of the testimony of Samuel Cruse, George [214] P. Beirne, and John J. Coleman, in relation to 'that instru: ment. For, conceding' the same to be admissible, it cannot affect the result of the case in this court; and on another, trial in the court below, we do not know that the same .questions of admissibility will be presented in the same shape. Our opinion is, that, upon the evidence contained in the record, the court below should have admitted the will to probate. For the error is disallowing probate, its decree is reversed; and, under what we deem the safer practice in such cases, the cause is remanded. — Code, § 3034.