George (of Color) v. Bussing, &C.

• Decision Date: 15 June 1855
• Citation: 54 Ky. 558
• Parties: George (of Color) <I>vs.</I> Bussing, &c.
• Court: Kentucky Court of Appeals

54 Ky. 558

George (of Color)vs.

Bussing, &c.

Court of Appeals of Kentucky.

June 15, 1855.

APPEAL FROM GARRARD CIRCUIT.

This suit was brought by John Bussing to vacate and set aside a will made by Polly Bussing, his wife, on the 10th January, 1850, and admitted to record by the Garrard County Court in April, 1850, and to recover of Scott property devised to him by the will in trust.

The fact is not controverted that Mary Bussing had been the wife of John Bussing for about twenty-five years before the making and publishing the will in contest. By this will, Mrs. Bussing attempted to dispose of two slaves, George, the appellant, and Betty. George was acquired by John Bussing in virtue of his marriage with his wife, who derived right under the will of her father, William Brown, and a release from her brothers of their interest derived from the same source. John Bussing had the possession of George from his marriage until he was forcibly taken from him by Scott, the trustee, after the death of Mrs. Bussing.

The Circuit Court declared the will of Mrs. Bussing void, so far as she attempted to dispose of the slaves George and Betty, and George has appealed to this court for a reversal of that judgment.

Lusk and Burton, for appellant —

J. & G. F. Burdett, for appellee — Judge SIMPSON delivered the opinion of the Court —

This case presents the question of the power of the wife to make a valid disposition, by will, of her personal estate and slaves, with the consent of the husband. As the will was made, and proved, and recorded in the year 1850, a decision of the questions arising under it must be governed by the law in force at that time. Whether any change in the law on this subject has been produced by the Revised Statutes, we are not now called upon to determine.

The doctrine is well settled that the wife may dispose of her separate estate by will, and may make a will in pursuance of a power given her for that purpose. It is also the settled doctrine that she may, with the consent of her husband, make a will to dispose of her personal estate. The principle upon which the power of the wife to make a will in such a case is founded, seems to be this: that the husband may waive the interest in her property which the law confers upon him, and empower the wife to dispose of it by will. The grant of such a power is implied from his consent that the will should be made. A general assent that she may make a will is not sufficient. It must be proved that he has consented to the particular will which she has made, and his consent should be given when it is proved. The reason for this is, that he may revoke his consent, at any time during his wife's life, or after her death, before probate. (1 Roper on Husband and Wife, 170; 1 Williams on Executors, 40.)

The consent of the husband that the wife should make this will is fully established by the proof, as well as his assent to the probate. When the will is made, as it was in this case, in pursuance of the wishes and with the express consent of the husband, very little testimony will be required to make out the continuance of the consent after her death. (1 Wms. on Executors, 41.)

The first section of the Statute of Wills, passed in 1797, (2 Stat. Laws, 1537,) applies to devises of real estate merely, and consequently, although that statute does not confer on a married woman the power to devise land, it does not render her incapable to dispose of personal estate, and it has never been held to prevent her from devising real estate under a power of appointment. (Yates' Will, 2 Dana, 216.)

A married woman was excepted out of the Statute of Wills, of 34 and 35 Henry VIII., yet the courts in England held that she could make a valid will with...