Cain v. Bunkley

HANDY, J., delivered the opinion of the court. This was a petition, in the Court of Probates, to admit to probate the last will and testament of Amanda A. Bunkley, and stating the following facts: that the testatrix was married to the appellee, in this State, in the year 1853, and became the owner of real and personal estate, as her separate estate, by distribution and possession obtained after the marriage; that for some time previous, and at the time of her death, she was living separate and apart from her husband, who had abandoned her for the space of three months before her death, refusing to see her and neglecting to perform any of the duties of a husband, even in her last illness; that she executed the instrument, propounded as a will, which bears date in December, 1857, and is attested by witnesses, according to law, and thereby disposed of all her property, and afterwards died, leaving no children or descendants; the petitioners were named as executors, and none of the property was left to the husband. The husband appeared and demurred to the petition, and the demurrer Was sustained, the petition dismissed, and this appeal taken. Two questions are presented in the case. 1. Whether a married woman can dispose of her separate pro [145] perty, acquired since the passage of the Act of 1846, and held under the provisions of that act, by will, without the consent of her husband, who survives her. 2. Whether the alleged abandonment by the husband, in this case, did not render his consent to the will unnecessary, and debar him of all interest in the property. i!;, In support of the affirmative of the first proposition, it is insisted that a feme covert, having property under our married woman’s law, has the same power over it, as a feme covert had in England over property held by her to her sole and separate use, and as to such property, that she is to be regarded as a feme sole, and therefore not under the disability of a married woman to malee a will, mentioned in the Statute of Wills. This question has been the subject of consideration repeatedly, in this court; and it is now firmly settled that a married woman, having a separate estate under our statutes, is not clothed with the rights of a feme covert in England, having property to her sole and separate use, but is a feme sole, with regard to the property, only so far as she is invested with power over it by the provisions of the statutes; that she cannot charge it by her contracts; that she can sell, mortgage, or convey it, only in the mode pointed out in the statutes; that she can dispose of it only in the way authorized by the statutes; that the statutes define and limit her powers in regard to the estate. Davis v. Foy, 7 S. & M. 67; Frost v. Doyle, Ib. 68; Berry v. Bland, Ib. 83; Doty v. Mitchell, 9 S. & M. 435; Curll v. Compton, 14 S. & M. 58; Selph v. Howland, 23 Miss. 268; Garrett v. Dabney, 27 Miss. 344. It is further held that the separate estate of the wife, is only so much carved out of the rights of the husband arising from the marriage: Knott v. Lyon, 26 Miss. 548; Cameron v. Cameron, 29 Miss. 120; from which it is plain that the entire and absolute estate is not in her. These cases, and many others, in which the same principles have been recognized, show that a married woman, holding property in virtue of our statutes, has a very different estate in it from what a feme covert in England had in property held to her sole and separate use, where she had the absolute power of disposing of it in any manner she thought proper, of contracting in relation to it, and of charging it for her separate debts; where, in short, she stood, in regard to146 it, in the position of a feme sole to all intents and purposes. And her want of that absolute, power over it, necessary to her right of disposition of it by will, is thus fully established. It has also been distinctly held, that the husband acquires, by the marriage and under the statute, a fixed and definite right, which vested in him; of which he could not be deprived without his consent, and which is entirely repugnant to the absolute right of disposition in the wife. Lyon v. Knott, Garrett v. Dabney, Curll v. Compton. Whether, therefore, the question be regarded with reference to the power of the wife to act as a feme sole, with regard to the property : to bind it by her contracts: to sell it, or to charge it in any manner, as a feme sole: or with reference to the right and interest of the husband in it: her power over it. is essentially different from that of a, feme covert holding property to. her sole and separate use in England. And it follows, that she cannot be regarded as a feme sole, in regard to such property, and is, therefore, incapable of disposing of it by will. The only exception to this rule, is that contained in the case of Lee v. Bennett, 31 Miss. 119, in which it is held that a'married woman, having an estate under our statutes, may dispose of it by a will, made with the consent of the husband. - But that case does not sanction the- will under consideration; for it. is admitted that this will was made without the consent of the husband: The question, therefore, under consideration, must be resolved in the negative! 2. It is clear that the alleged abandonment, under the circumstances set forth in the petition, would not be sufficient to constitute the wife a feme sole, and to invest her with the rights and privileges incident to that character. 2 Kent’s Comm. 155/et seq. Nor is there any reason for the position which is assumed in behalf of the appellants, that the husband, by the alleged abandonment, had forfeited his interest previously existing in the property. The cases of Cecil v. Juxon, 1 Atkyns, 278, and Starrett v. Wynn, 17 Serg. & Rawle 130, are cases where the husband, who had deserted his wife for a long time, was held ndt to be entitled to property which she had acquired by her own industry' during the period of his abandonment. But the principle upon which that rule is [147] founded has no application to the right of the husband in property acquired before the separation, and the cases cited are not authority for the position taken in behalf of the appellants, that the husband lost all interest in the property, which he had previously acquired, by his desertion of his wife. We think that the judgment is correct, and it must be affirmed.