Whitfield v. Hurst

• Court: North Carolina Supreme Court
• Writing for the Court: RUFFIN
• Citation: Whitfield v. Hurst, 3 Ired.Eq. 242, 38 N.C. 242 (N.C. 1844)
• Decision Date: 30 June 1844
• Parties: WILLIAM A. WHITFIELD v. JOHN B. HURST.

3 Ired.Eq. 242

38 N.C. 242

WILLIAM A. WHITFIELD

v.JOHN B. HURST.

Supreme Court of North Carolina.

June Term, 1844.

The will of a married woman cannot be made available, as a will, in Equity, without having been first established as a testamentary instrument in the Court of Probate.

After such probate, the Court of Equity is still to see that the instrument is of that kind, by which the feme covert can dispose of her property.

A Court of Equity has no right to instruct the Court of Probate, as to the proper construction to be put upon marriage articles, and whether by them the feme covert is or is not authorized to make a will.

The course in the Court of Probate is, where the wife assumes the right to make a will, and the right is questionable, to pronounce for the will on proof of the factum, and leave it to the Court of Equity to determine definitely, whether she had such an interest or authority as she could dispose of or execute by will??

When, before such probate, a bill is brought to enforce the alleged will, it must be dismissed; and the Court will not hold it up, to give the party an opportunity of propounding the will in the Court of Probate.

The case of Newlin v Freeman, 1 Ired. 514, cited and approved.

This cause, having been set for hearing, at the Spring Term, 1844, of Wayne Court of Equity, was transmitted by consent to the Supreme Court.

The following are the material facts of the case:

The defendant, and Sarah B. Whitfield, a widow, being about to intermarry, entered into articles on the 6th of April, 1826, and were then married. The bill charges, that, according to the true construction of the articles, a separate estate in her property, consisting of a number of slaves and other things, was secured to Mrs. Hurst, with certain benefits from a part of the income of the property to the husband during the marriage, and that the wife had the right of disposition by will or otherwise, after the coverture. Or, if such be not the construction of the articles, as drawn, the bill charges that such was the intention of the parties, and that the articles failed to express the same through mistake or through the fault of the defendant, who undertook to have them properly drawn.

In July, 1839, Mrs. Hurst executed an instrument purporting to be a will made under a power in her marriage articles, in which she gave to her son, the present plaintiff, several negroes specified, and gives the residue of her estate to her husband, and appointed him and another, executors. She died early in the year 1840, and in August of that year, the defendant, and the other person having refused the office of executor, the plaintiff propounded the instrument as his mother's will, when the defendant opposed the probate, and an issue of devisavit vel non was made up. On the trial, the defendant insisted, that his wife had no right to dispose of the negroes after her death, as the articles only secured to her a separate estate during her life, and no longer, and conferred on her no power to bequeath or convey them afterwards; and the Court having so decided, the plaintiff withdrew the instrument, and then filed this bill, in which he prays that the articles may be executed according to the true meaning, or, if necessary, that they may be reformed so as to be made conformable to the intention of the parties as before stated, and the defendant held to be a trustee for the plaintiff, and compelled to deliver and convey the slaves so bequeathed to the plaintiff, and account for the profits.

The answer states, that the parties did not mean to restrain or encroach on the marital rights of the defendant, except by securing for the wife a certain and adequate maintenance during her life, and therefore the articles gave her a separate estate for that period; but that it was not intended she should have the slaves absolutely as her separate property,...