Newlin v. Freeman
| Decision Date | 30 June 1846 |
| Citation | 39 N.C. 312,4 Ired.Eq. 312 |
| Court | North Carolina Supreme Court |
| Parties | JOHN NEWLIN v. RICHARD FREEMAN et al. |
A power to the wife created by marriage articles will, though only an equitable one, bind the estate to which it refers and be supported in Equity, in the same manner as if proper legal conveyances had been made.
Where land is conveyed to a married woman, or to a trustee, for her separate use, she has no ability to dispose of that land by will, nor otherwise, than by the ordinary mode prescribed for the conveyance of land by femes coverts, unless a power to that effect has been expressly given to her in the deed of conveyance. It is otherwise in respect to personal property.
Where by marriage articles the land, which the wife should have at the time of the marriage and other property were agreed to be reserved to the separate use of the wife, with a power to dispose by will or otherwise of the said land and other property, and the wife, after the marriage, purchased, out of the proceeds of her separate estate, other land. Held, that she had no more right under the marriage articles to dispose of this land than if the marriage articles did not exist, the deed of conveyance not giving her any power to dispose of it.
Cause transmitted by consent from the Court of Equity of Orange county, at the Spring term, 1846.
The following from the pleadings appears to be the case:
Sarah Foust was entitled to several slaves and sums of money and debts due to her, and also to a tract of land in fee, on which she resided in Orange county, and being about to intermarry with the defendant, Freeman,?? then entered into articles, whereby it was provided that each should keep his and her own property after the marriage, and she renounced all right to dower in the intended husband's lands and to a distributive share of his personalty, and he also renounced all interest and right that he might acquire in her estate by the marriage. After providing that she should have her personal property to her separate use, it was further agreed, that she should have full power and authority, during coverture, to dispose of the same by deed or will. The articles then provided, that, upon the marriage, Freeman might enter into the tract of land and cultivate and enjoy it during the coverture, and it is then added, “that the said Sarah Foust shall have full power and authority, during the coverture, by her last will and testament, to dispose of the said land to whomsoever she may choose, and, in case of failure by the said Sarah to make such disposition by her last will and testament, such land, upon her death, shall descend to her heirs.” The marriage took effect; and, during the coverture, the wife purchased from her husband a tract of land containing 200 acres, situate on Rocky River in Chatham county, and paid for the same out of the money, which formed a part of her separate personal estate, and took a conveyance in fee to the present plaintiff in trust, as the bill alleges, for her separate use, but in point of fact, in trust merely for her. By her will, dated May the 20th, 1835, and attested by two witnesses, Sarah Freeman devised to her husband for life, her land on Rocky River, and after his death she devised the same to the plaintiff Newlin, in fee, and also devised to him all her other land in fee, and gave him her whole personal estate of every kind, and made him the executor. After her death, the plaintiff propounded the instrument in the County Court,?? as Mrs. Freeman's will, to pass both real and personal estate, and, upon the caveat of the husband and of the heirs at law and next of kin, (who are the defendants in this suit,) it was tried upon an issue of devisavit vel non, and after a verdict in favor of the will, the defendants took the case by appeal to the Superior Court, where it was again tried and a second verdict found for the plaintiff. The Court thereupon pronounced for the instrument as a will of personalty, but notwithstanding the verdict the Court pronounced against it as a devise, upon the ground that a feme covert had no capacity to devise land and could not acquire it by articles with her husband, and upon appeal to this Court that judgment was affirmed. Newlin v. Freeman, 1 Ired. 514.
Newlin then filed this bill against the husband and the heirs at law, setting out the foregoing facts and seeking that the will may be declared sufficient as an appointment of the real estate, in execution of the powers reserved to Mrs. Freeman over her estate in the articles--the same made effectual by proper conveyances from the heirs at law--the husband not being tenant by the curtesy, as there was no issue of the marriage.
The answer of Freeman states circumstances of fraud and imposition on him by Newlin, in inducing him to enter into the articles, and at the same time concealing from him the facts, that Mrs. Foust had before executed a will of her whole property in favor of Newlin, and then intended to do so again, as was known to Newlin, while they held out to him that she would under the power make a disposition of the land or a part of it in his, Freeman's, favor. All the answers state and insist upon many circumstances of circumvention and undue influence, practised by Newlin upon the testatrix, in order to obtain the will from her, while she had not mental capacity to make a will. And the heirs insist that the articles are not binding upon them, upon the ground that they were not parties to them, and that as the instrument is ineffectual at law, this Court will not supply its defects as against them.
Waddell and J. H. Bryan, for the plaintiff .
Badger and Norwood, for the defendants .
A mass of depositions has been filed in the case, which it is unnecessary to set forth particularly, as they leave no such doubt as to the fact, as to call for a discussion in detail of the testimony of the witnesses. The due execution of the articles before the marriage is established; and the defendant, Freeman, has entirely failed to establish any imposition by either the intended wife or the plaintiff, or any representation from either of them to him of an intention of the wife to make any disposition in his favor, as an inducement to him to enter into the agreement. The due execution of the will is proved by the subscribing witnesses, and by them and many other witnesses, it is shewn that the testatrix had full capacity to do so,...
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