Newlin v. Freeman

• Court: North Carolina Supreme Court
• Writing for the Court: PER CURIAM
• Citation: Newlin v. Freeman, 1 Ired. 514, 23 N.C. 514 (N.C. 1841)
• Decision Date: 30 June 1841
• Parties: JOHN NEWLIN v. RICHARD FREEMAN, et al.

1 Ired. 514

23 N.C. 514

JOHN NEWLIN

v.RICHARD FREEMAN, et al.

Supreme Court of North Carolina.

June Term, 1841.

The probate of a will of lands by a married woman, cannot be had in the County Court.

A married woman can only make an appointment in the nature of a will of real estate, under a power of appointment specially given in some deed, and that appointment the Courts of Equity have alone the jurisdiction to determine on and enforce.

But a married woman, by her husband's consent, can make a will of her personal property.

And where he has covenanted in a marriage settlement, that she may make such will, but withholds his consent from the particular will she makes, this is still her will as to personal property; sufficient, at least to repel his right of administering, and to authorize the granting of administration to her appointee, with the will annexed.

In case of appointments, authorising married women to make a will of personal property, the appointment must be proved as a will in the proper court, and then is regarded in all courts as a will.

The following is the case reported by the Judge below to the Supreme Court.

This was an issue devisavit vel non, tried at Orange Superior Court of Law, at Spring Term, 1841, before his Honor, Judge PEARSON, between John Newlin, who propounded the paper writing, as the last will and testament of Sarah Freeman, and Richard Freeman and others, who entered a a caveat thereto. It was admitted that Sarah Freeman, at the time of making the supposed will, and up to the time of her death, was the wife of Richard Freeman, one of the caveators. It was also admitted, that marriage articles had been executed by them, before their intermarriage, by which, among other things, it was stipulated, “that the said Sarah shall have, use, possess and enjoy all her property of a personal nature, consisting as well of the negroes now in possession, as those which may hereafter come into existence of their increase, with her choses in action of every kind and description, free from any molestation or hindrance from him or any person claiming under him--and also the hire of the said negroes, and the accruing interest upon the said choses in action. And the said Richard Freeman doth further covenant and agree that the said Sarah shall have full power and authority to dispose of during said coverture, the whole or any part or portion of said property, by deed or will. And the said Richard Freeman doth further covenant and agree to, and with the said Sarah, to relinquish, and by these presents doth relinquish all right, which he may or might by the laws of the country possess, in case he survive the said Sarah, to succeed to her personal property as her next of kin.”“And it is further agreed by the parties hereto, that the said Sarah shall have full power and authority, during coverture, and by her last will and testament, to dispose of her said lands to whomsoever she shall choose; and, in case of failure by said Sarah to make such disposition by her last will and testament, such land upon her death shall descend to her heirs.” These articles were duly proved and recorded. The counsel for the caveators insisted that the said Sarah could not in law make a will, disposing of either real or personal property. It was thereupon agreed that this question should be reserved, and the issue submitted to the jury, free of this difficulty, and, if the jury found the issue in favor of the caveators, the verdict should be so entered; but if the jury found the issue in favor of John Newlin, the verdict should be subject to the question reserved, which should be presented by a case agreed. The plaintiff proved, by the two subscribing witnesses to the will, the formal execution thereof, that they signed the paper in her presence and at her request--that she signed in their presence and acknowledged the paper to be her will; and that she was then of sound mind. The said witnesses proved that Newlin requested them to go up to Freeman's--that Richard Freeman, the husband, was absent--that neither witness read the paper or knew what it contained--that it was so folded down that they could not read its contents--they had known her a long time, but had no intimate acquaintance with her--and one of them was asked by her, a year or more before that, if he would witness her will and keep it secret--she enjoined secrecy on both at the execution.

The defendants then offered evidence to shew that the will was written at Newlin's--that no one was present at the time but Newlin and the witness, Mr. Jackson, who wrote the will--that Newlin dictated the whole of the will-- that the witness who wrote the will, had received no instructions from Mrs. Freeman for the writing of a will, or this one in particular, nor after the will was written did he ever speak to Mrs. Freemau, nor she to him on the subject of her will. The defendants further offered evidence, shewing that Sarah Freeman could not read English, nor write the language--that she was a German woman, and could read German--that she was ignoraut--and, one witness, Dr. James Webb, said, would be easily imposed on by one in whom she had confidence--that she was 65 or 70 years of age--that she and her husband, Richard Freeman, lived together on terms of affection--that she had declared, before making the will and afterwards, that, when she was dead, her negroes should be free, and serve no one.

The plaintiff then introduced two other wills, written by Newlin for the supposed testatrix, previous to her marriage with Freeman and during her widowhood, devising and bequeathing her whole estate to Newlin, and proved, further, that she had great pecuniary confidence in Newlin, and entrusted him with the management of all her funds. The subscribing witnesses to the wills introduced had never heard them read nor knew what they contained. Newlin was a member of the Quaker Society. Mrs. Freeman had always said that it was the intention of her former husband and herself to set the negroes free, and send them to a free state or country--that she could not do that, and she intended to give them to some steady old Quaker, who would not own slaves, and that both she and her first husband had repeatedly declared that their relations never should have their property--she was of a fixed and decisive character-- she was never heard by these witnesses to speak of her disposing of her property after she married Freeman.

The defendants then proved by Freeman and Crawford, that she had said she intended to give a part of her land to one of the sons of Richard Freeman, her husband, and another part to a young man named Crawford, whom she had raised, and the personal property, with the exception of her slaves, to her husband-- that her slaves should not belong to any one, but go free.

His Honor charged the jury, in substance, that if the execution of the will was obtained by undue influence, by fraud or imposition, they would find in favor of the defendants--that what amounted to such fraud, undue influence or imposition, as would be sufficient to set aside a will, were questions of law for the court, and the court then explained these terms to the jury--that whether such fraud, influence or imposition had been made out were questions of fact for the jury--that it was not necessary to have direct proof, but it was sufficient if, from the evidence, the suggestions and arguments of counsel, and their own sense and observation and knowledge of human nature, the jury were satisfied as reasonable men, that the paper writing had been obtained by undueinfluence, fraud or imposition--that after the formal requisites of a will had been proved, it was then for the caveators to make out undue influence, fraud or imposition--that the existence of these facts, like every other fact, must be poven, either directly or by such circumstances as satisfy the jury of their existence....