#### John Graham vs. The Executors and Legatees of Sarah J. Graham, deceased.

On appeal from the judgment of the Circuit Judge, at the Williams-burgh Court of Law, on a special verdict, on a feigned issue.

The case was as follows.

This was a feigned issue, to try the validity of a paper, purporting to be the last will of S. E. Graham, and the jury found the following special verdict.

> “ We find that Rebecca Campbell, on the twelfth day of January, 1816, duly made and executed her last will and testament, consisting of the following clause, viz: “ I give, devise and bequeath to Mrs. Sarah Cooper, wife of George Cooper, Senr., all my personal property to her, *and at her disposal at her death.”*That George Cooper, Senr. and one William Gibson, Junr. were named as Executors of the said will. That the said Rebecca Campbell, shortly af-terwards, departed this life, without altering or revoking the same. That the said George Cooper, Senr. departed this life about ten days after the death of the said Rebecca Campbell, not having proved the will of the said Rebecca Campbell, or qualified thereon, but the same was proved by the surviving executor, William Gibson. That shortly afterwards, the legatee, Sarah Cooper, took into her possession all the property, and retained the same in her possession, until her intermarriage with John Graham, in the month of February, 1818. When the said John Graham took the slaves, and other property, into his possession, and has retained the possession always since. We also find, that the said Sarah Graham, during her coverture with the said John Graham, did, on the 13th day of June, 1834, duly make and execute her last will and testament, in writing, by which said last will and testament, she disposed of all the said property to her relatives, and others, giving to her husband, the said John Graham, a legacy of one hundred dollars; and we have no evidence that her said husband knew of, or assented to the execution of the said will; and shortly af-terwards, departed this life, without altering or revoking the same. If the court should be of opinion, from these facts, that the said Sarah E. Graham, could lawfully dispose of such property, by last will and testament, during her coverture, and without the knowledge and consent of her husband, Joha Graham, then we find for the defendants in appeal; otherwise, we find for the plaintiff in appeal.”

His Honor, the presiding judge, ordered that the *postea*be delivered to the *plaintiff.*

A motion is now made to reverse that order, on the ground that the *postea*should have been ordered to be delivered to the defendants.

The appeal has been fully and ably argued.

Two questions are made in the case, which require the decision of the court. First, whether the last will of Mrs. Rebecca Campbell gave a sole and separate estate to Mrs. Cooper? And, second, whether *143Mrs. Cooper, afterwards Mrs. Graham, possessed, and duly exercised the *jus disponendi,*over the property bequeathed to her? The words of the bequest, to be construed, are, *“*I give, devise, and bequeath to Mrs. Sarah Cooper, wife of George Cooper, Senr. all my personal property to her, and at her disposal at her death.”

By the *common ¡aw,*the persona] *estate of the wife,*reduced *to*possession, becomes the absolute estate of the husband. She may hold property, to her sole and separate use, but this is an exception, out of the rule. To create a sole and separate estate, free from the control of the husband, requires that there should be a clear, and distinct expression of the intention of the grantor, to create such an estate, such a departure from the rule. Equivocal expressions are not sufficient. In the case we are considering, the words of the will are equivocal on this point.

The bequest is to her. This gives an absolute estate in personal property, and she would have the absolute right to dispose of it, during her life, or at her death ; unless she were a married woman, and thus disqualified by law, from exercising acts of ownership over it; in which case, her being, and her rights are blended with her husband’s. The addition of the words, *“*at her disposal at her death,” do not, of themselves, add to, or enlarge her interest in, or power over, the property, thus previously bequeathed to her. If it had been intended to give her a sole and separate estate, free, from the control of her husband, not subject to his debts, and subject to her disposition, by deed or will, it would have been easy to have made such provision *•,*and the law is so desirous to extend to the citizens, the right of disposing of their property, according to their affections, wishes, and even caprices, that it will recognize, and give effect to such departures from the general rule. It does, however, require, that the expression of such intent should be plain, explicit, and unequivocal ; else there will be a continual conflict, from the desire to raise up implications of an intention to give a sole and separate estate to the wife, from slight expressions, leading *to*unceasing litigation. We are, therefore, of opinion, that the provisions of the will, in question, do not create a sole and separate estate in Mrs. Cooper, (after-wards Mrs. Graham,) disposable by her, whilst a married woman, in derogation of the marital rights. But the personal estate bequeathed, vested in her absolutely, and the marital rights of her husband, Mr. Graham, attached. If the will of Mrs. Campbell had been proved, and the personal property reduced into possession by Mr. Cooper, during his life, his marital rights would have attached. But he died before these acts were done, and the property having afterwards come *144into the possession of Mrs. Cooper, was her absolute property, during her widowed state; — and became the property of her second husband, Mr. Graham, on her marriage with him. Under this state of things, the *jus disponendi*was not in her; and her execution of a testament, with all due formalities, without the consent of her husband, and to the prejudice of his marital rights, was a mere nullity.

The decided cases shew the difficulties which environ the subject, and the perplexities arising from the attempt to give effect to the wishes of parties doubtfully expressed. The English cases are at variance with each other; and our own equally so. In Thompson and Johnson, 4 Eq. Rep. 458, decided in 1814, and in McDonald and Crockett, 2 McCord C. R. 130, decided in 1827, it will be seen how difficult it is to adjudicate steadily and uniformly on this subject, and how important it is, to prevent an incessant litigation, to endeavour to lay down, and adhere to some plain intelligible rule, which shall leave as little to inference as possible. I will venture to say, that it would be best to lay down the rule in this manner. That tp create a sole and separate estate for the wife, exclusive of the control and debts of the husband, there must be a clear and distinct expression of that intention on the face of the deed, will, or other instrument creating the estate, and leaving nothing to mere inference : otherwise the gift or bequest to be taken to belong absolutely to the wife, subject to the marital rights, and not disposable by her whilst a *feme covert.*And the court is of opinion, that there is no such clear disposition to the separate use of the wife, in the case we are considering, so as to make it a disposable estate by her. The *jus dispo-nendi*by the wife of a separate estate, where created, has been a vexed question, on which decisions of a conflicting character have been made. The whole subject of the rights and powers of the wife, to bind or dispose of her separate estate, was brought under discussion in the case of Ewing and Smith, decided in 1811, reported in the Equity Reports, 3d vol. 417. It is not necessary, nor is it my intention, to go into an examinadon or application of that. case. 11 is sufficient.to say, that a majority of the then Court of Appeals, (three to two) were for limiting the power of the wife to bind or dispose of her estate within the narrower limits, in concurrence with those cases, which were the straightest in that respect, and reversed the decree of the Circuit Court. That it was a disputed doctrine, and a vexed question, is obvious, from the fact that soon after these decisions in South Carolina, the same question in substance came up in New-York, before that great jurist, Chancellor Kent, who decided differently from the Chancellor here, and in conformity with the decision *145of the Court of Appeals. But his decision was reversed by the Supreme Court of Errors and Appeals in New-York.-

Dunkin and Kino, for the motion.

Putigku and Hunt, contra.

Filed 17th May, 1836.

The subject came up again before the Couit of Equity in Charles-ton, in the case of the Trustees of Mrs. Champneys vs. The Executors of Champneys, in March and April,-1821,-which is not reported. And in that case the then Court of Appeals, Consisting of five judges, resolved unanimously to adhere to the principles laid down by the majority of the court in Ewing and Smith. The two chancellors who had been in the minority in Ewing and Smith,- yielded- their judgment to the majority of *the court, and*concurred in the judgment,- that' the? doctrine might be settled, and litigation on this subject ended-,- Whether the doctrine as to the *jus disponendi*may be considered finally settled by these decisions, cannot be known till the question eomes up more distinctly and more insulated.

It appears in the case of Frazier vs. Centre and Hall, 1 M’Cord’s Cb. Rep. 270, that the late learned and acute Judge Nott, doubted (page 275) if the question was finally settled in this State* He refers to Ewing and Smith, and the cases collected there. glish decisions, as well as to the decision of the /®unrega$í Errors and Appeals in New-York, — 17 Johnson’s Rep. 548, Jaces vs. Methodist Church; and expresses his concuntancewitlr^^Mid^ the rule laid down by Lord Hardwicke in GrigMimd'Cox, 1 Yes.- |tj 517, to wit, “ That where any thing is settled to Hie separate use, she is considered a *feme sole;*may ap^pilt-mwnat^pP' ner she pleases; and unless the consent of the trustSeresibs^R^ff necessary, there is no occasion for that.”

Whatever may be the ultimate judgment of this court, on these conflicting opinions, it is unnecessary to decide now, as the court is of opinion, that the will of Mrs. Campbell, bequeathing her personal property to Mrs. Cooper, did not bequeath an estate to her, clear of the marital rights find control, so distinctly and expressly, as to ereate a sole and separate estate, exempt from the debts and control of her husband, or subject to the *jus disponendi.*It is therefore adjudged that the order of Judge Earle be affirmed; and that the *postea*be delivered to the plaintiff, John Graham.

HENRY W. DESA.USSURE.

We concur,

R. GANTT,

A. P. BUTLER,

WM. HARPER,

JOSIAH J. EVANS,

J. S. RICHARDSON,

J- JOHNSTON.

JOHN B. O’NEALL,