Worrell v. Drake

Mr. Justice Neil delivered the opinion of the Court. This was an action brought in the chancery court of Crockett county by the heirs at law of Mrs. Nannie A. Drake, deceased, to recover of her surviving husband, the defendant, W. F. Drake, a tract of land, her general estate, which she during the marriage had conveyed to her husband, her privy examination having been taken, but the deed having been signed by her alone. The chancellor held that the conveyance was void, and gave the complainants relief. There was no error in the decree. This exact question was decided by this court in the case of Giffin v. Giffin, at the September term, 1896. No written opinion was filed by this court, but the opinion of the court of chancery appeals (37 S. W., 710), which presents that single point, was affirmed. That case contains a full discussion of the subject. Complainants’ counsel seem to have been misled by a dictum of McFarland, J., in Molloy v. Clapp, 2 Lea, 586, 588, 589, which intimates a contrary view as the proper construction of the act of 1869-70, page 113, chapter 99, .What was there said, however, upon the subject of the general estate of the wife, was pure die305 turn, the question before the court being the wife’s poAver to convey her separate estate. In making the deliverance referred to, Judge McFarland overlooks the sixth section of the act referred to, which reads as follows: “The provisions of the act, except the provision of the third section of this act, shall apply to and embrace only such femes covert, or married women, as have abandoned their husbands, or whose husbands may be non compos mentis, insane, or of unsound mind, and also to such married women, or femes covert, whose husbands may fail or refuse to cohabit with or have abandoned such married Avomen, or femes covert” etc. The section on Avhich Judge McFarland based the remarks relied on was the first, Avhich reads as follows: “That married Avomen over the age of twenty-one years, owning the fee or other legal or equitable interest or estate in real estate, shall have the same poAvers of disposition, by will, deed or otherwise, as are possessed by femes sole, or unmarried women.” But it is • seen that the generality of this language is confined by the sixth section to certain specific classes of married women. Mrs. Nannie A. Drake did not belong to either one of tlmse excepted classes Avhen she attempted to make the deed referred to. Hence her deed was void, and the complainants, as her heirs at law, are entitled to recover the land. Affirm the decree.