The Daily clarion. [volume] (Jackson, Miss.) 1866-1888, 1867-04-09
DECISIONS OF THE aIaH COURT
ERRORS AND APPEALS.
OCTOBER TERM, 1866. w.
touching the ComstltntiommIfty OF
IIls Exemption Law.

Il al y 81 II -Tl M .Gtl
-Touching the ConstItutionmIity Of
1Ils Exemption Law.
IL. s. Stephens, Admr.) n i@'H
OF Isaac Osborne,
Jane Osborne, Admr.
The opinion Of The Court dclircred BY Justice
Elicit: .,,..s
4 Appeals fromthe Probate Court Of DE Soto
county
The warrant Of appralsement Of the estate Of
Isaac osborne, deceased, issued IN FoDruary,
1866, commanded the appraiser to set apart 70
the widow and children, such personal proper
ty OF the decedent, as was exempt by law from
execution. The appraisers disregarded thlh
direction, and appraised all the personal prop
erty as belonging to the estate. rue apponer,
the widow Of the deeedeLt, fled exceptions u
the action Of the appraiser, In this respect, ana
prayed that the matter be referred back u
them, with instructions to set apart the ex'
empt property, a I'd the yeas provision rs con
templated by law. The appellant hled an an
swer to the exceptions, alledging that leOv,
the decedent and the appellee had agreed 70
live separate and apart, and BAG, togetner
with j II. Lewis, as trustee for the SAID ap.
pelee, executed a deed Of separation, dated
February, 800, whereby they mutually REIN
gui,hed forever all claim to the properly OF
appellee was possessed Of more properly lnail
her husband; that the home, at which they
( were then living belonged to her; ana that
she still owned it. That the parties separated
Immediately upon the execution OF said deed,
and never afterwards lived together as man
i and wife That all the stpulatipns ofthe deed
j were faithfully carried out and executed Dy
all parties, during the Lille of decedent, who
died in January, 1856 And onthe ground Oh
these facts, it is denied that appellee has any
clam to the exempt property, or other prop
erty Of decedent!f a5a3 no l'ffn%3aa
+ The deed of separation is made an exhibit
with the foregoing answer, 1t purports to be
l-madebetweeen |. Osborne of thefirst part,J ane
Osborne ofthe second part, and John T. Lew
is Of the third part 1t recites the marriage In
lJuly, 1887, and the agi cement to separate, ana
then proceeds as follows: "they have therefore
j agreed and covenanted between and with them
selves, and with the said John 7. Lewis, trus-
ire for the said Jane Osborne, that they Wlll
separate; and live apart from cath other. And
the said party of the first part hereby cove,
nants with the otherparties, that he will, aud
he doth hereby forever relnguish all claim to
the property, real and personal, OF the said
i party of the second part, which he now or may
hereafter have, i'll law or equity, as her said
+ Husband and thathe will never attempt to en-
ercise any right or control over her as his wifi.
And the said party of the second part hereby
| covenants and agrees with the other said par
ties, that, she wiItahd doth hereby forever re-
linguish all claim to the property, real and per-
sonal of the said party Of thoftst part, which
/ she may now or hereafter have, IN law or equl-
| ty as his wife,
1 There are also clauses providing for the
repayment to the husband of money adj
/ vanced by him to take up the debts of his
| wife, and for division of the provisions on
| hand, but these are immaterial to the pres
| ent case.
The deed purports to be signed and sealed
1 by all the parties, and is acknowledged by
the parties of the first and second part alone.
They severally acknowledged that they
signed, sealed and delivered the deed, on
the day and year therein mentioned, as their
/ own act and deed; but on the private ex-
animation Of the appellee she acknowledged
only that she "signed" the deed, emitting
the words "sealed and delivered" In other
prospects the acknowledgement is !, i'll due
| form.
4 The appellee demurred to the answer to
| her exceptions, and on hearing, the Probate
| Court sustained the exceptions, and remain
| ded the appraisement to the appraisers,
| with instructions to set apart to the widow
the exempt property under the law OF the
! 2Sth of November, 1865, or the value there
| of if the same had been sold; also years
| allowance in provisions, or money to pur-
| chase the same. lfHl tlIIQd LIZA y.
The appraisefsn having made their report
in pursuance Of this order, setting apart to
the widow the proceeds of the exempt prop
erty, which had been sold, and making an
| allowance in money for the purchase off pro-
| visions, the appellant filed exceptions to the
lroport, on the ground that the exempt prop
erty was allotted under the act Of November,
| 1866, and that the allowance to the widow
consumed the whole personal estate of the
| deceased, the estate being indebted otaAri-
1nt.t TOD he
passage of the said act. 1877 I-2tss1G
These exceptions were Overruled, and the
l,report of the appraisers confirmed and ap
proved.
The appellant assigns forrerrorsyr
| l. The allowance to appellee, (the widow
lof the decedent)rof the property, exempt
from execution, belonging to the estate she
having by deed desperation, in the lifetime
8fhsr, husband. relinduished all claims upon
2. The setting apart of the exempt prop
eFty under the provisions of the act Of No
-yember, 1865, there being debts due by the
estate; contracted before the passage Of that
act, and it being incompetent for the legis-
lature to enlarge tho exemptions, SO as to
defeat the collection of debts previously
contracted. 10 IVlII9 E)9N DAT,
8. The first error assigned depends upon
the validity and effect of the deed of separa:
tion. g = ~ IKE 81 y VI p ST "
This involves question that has greatly
exercised the English courts;, Lord Eldon,
Lord Kenyon, and other distinguished Judg-
es, in the courts of law and equity, have not
hesitated to declare that if the matter were
res iRtegrd, they would mot recognize the
validity Of any agreement for a Separation
between husband and wife, and have de-
nounced thema as violationof fundamental |
principles ofpublic policy. But they have
found the contrary doctrine too firmly es-
tablshedZin theiaoourts; by the dictG
of earlier. Judges, long acquiesced in
to allow of its being overturned, although
the foundation upon which II rests has beeh
severely shaken. The ecclesiastical courts,
indeed, treat all such agreements as null and
void, and will enforce suits for the restitu- |
tOn Of coniugal rights, in defiauce Of the |
conditions of deeds of separation. Courts |
Of equity, even, will not decree the specific |
performance of an agreement to live apart,
but they will enforce the payment of the al |
lOwance stipulated in such Instruments, to
be paid by the husband to his wife, and 9th
sr covenants entered into by him in corsd-
grafton of q separation. But an agreement
If this character, made between the husband
midwife alone, isNoid son account of the
ncapacity of the wife to bind herself by
contract, or to take anything by deed or con-
rhct directly from her husband Agree
nents ofrseparatieR between usband and
wife are only valid when made, through the
Igeney of az trustee, acting for tile wife II /
The husband will in such cases, be bound by Il
lis covenant or conveyances to the trustee
or the benefit Of his wife, and the trustee
will be bound by any covenant entered into
y hin, on tile part of the wife, to indefnnfl Z
y the husband against liability for her sun
ort or for her debts and against her claims
II bis property "a married woman as n vatn I I