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Payne vs. Pollard, &c.

and assigns, without the exclusion of the marital rights of any future husband.

As Spencer Payne survived her, she was a married woman at her death, and could legally pass, by last will, only such separate estate as she then had. This real estate, therefore, descended to her heirs-at-law, without any power in her to deprive them thereof by last will; and the interest of Geo. B. Pollard, one of her children and heirs-at-law, was subject to be levied upon under execution against him. But, as it is evident that it was held jointly with others, the officer should have proceeded as directed by the act of February 12, 1858. (2 Stanton's Revised Statutes, 513.)

If the joint owners, being notified by the officer of the levy, notify him that they claim a joint interest, it is his duty to return the facts, and the plaintiffs are thereupon to proceed in equity. Here the officer knew of the joint ownership, and that the joint owners were minors. The officer should not have made a sale; but the statute secures a lien to the execution creditor, which he can enforce by equitable proceedings.

It was erroneous to dismiss plaintiff's petition, notwithstanding the sale and conveyance by the officer was invalid; yet appellant acquired a valid lien by the levy of his execution, which the court, on proper proceedings, should perfect, by a sale of the land levied upon, to satisfy it; and, to this end, should first partition G. B. Pollard's interest, after having all necessary parties properly before the court.

Judgment reversed, with directions for further proceedings as herein indicated.

VOL. III-9

Payne vs. Pollard, &c.

To the petition of A. J. James, in behalf of appellees, for a rehearing,

JUDGE WILLIAMS DELIVERED THE FOLLOWING RESPONSE OF THE COURT:

Appellees insist, in their petition for a rehearing, that the provisions of section 29, chupter 106, 2 Stanton's Revised Statutes, 466, authorizing county courts to probate wills, and declaring that "its probate before such court shall be conclusive until the same is superseded, reversed, or annulled," has been violated in the opinion.

What is it that is conclusively established by such probate? The words of the will, that the testator was of sound, disposing mind, and that it has been regularly executed and proven, but not the legal effect and meaning of the words of the will; for surely, if a neighbor should intentionally, or by oversight, devise my lands, this would not divest me of my title, unless I should have the probate set aside. Nor has any authority been shown to this effect. It is true, if the will should make a devise or bequest inconsistent with the rights of the heir-at-law, he cannot accept the devise or bequest so far as it is his interest to do so, and repudiate it as to the balance. In such case, if he elects to hold under the will, he is estopped from setting up against it, because, by his election to hold under the will, he establishes it and surrenders all his rights antagonistic to it.

Judge Redfield, in his admirable Treatise on the Law of Wills (vol. 2, p. 53, subdiv. 6, of sec. 5), says: "The effect of probate is to establish the words of the probate as the legal will of the deceased. How far these words extend, what is their precise scope and operation, will unquestionably remain to be considered and determined by the tribunals before which any party may claim a right under the instrument. Thus a will executed under a power, being admitted to probate, it is thereby conclusively established

Payne vs. Pollard, &c.

that the will contained the effective words of the probate, and that it was duly executed according to the law governing it; but how far it is a compliance with the requirements of the power, and whether operative under it, must be settled by the tribunals before which these questions shall be

raised."

Now, if every tribunal before which it might come would examine to see whether a married woman's will was in accordance with a power, in cases where she has such power, to devise, how much more so would it be where she had no legal power whatever to devise the land; and if courts would construe the will as ineffectual when not in accordance with the power, how much more so when no legal power of any character existed.

The testatrix in this case had no legal power by last will to deprive her heirs-at-law of the land; and, as the will was ineffectual for that purpose, it can only be made operative by some voluntary act of the heir, which would estop him from setting up, as here, an inconsistent claim to the provisions of the will, as claiming the devises and bequests of the will; but nothing of this kind appears in this case.

It was not intended by the Legislature to make this provision as to the probate of wills operate a repeal of sections 2 and 4 of same chapter 106, on Wills, in which it is provided when and how a married woman may make a will, and in no other cases.

The conclusiveness of the probate does not give effect to the words of the will in contravention of the laws of the land and general policy of the State; nor can it, per se, deprive the heir-at-law of his inheritance in cases where there is no special power in the testatrix to do so, and he has by no voluntary act precluded his claim as

Stith vs. Patterson, &c.

heir-at-law; and these views are in perfect accord with all the decisions of this or other courts referred to by the learned counsel for appellees.

Petition for a rehearing overruled.

CASE 40-PETITION ORDINARY-JANUARY 23.

Stith vs. Patterson, &c.

APPEAL FROM MEADE CIRCUIT COURT.

1. In case of abandonment of his family by the husband who is a father, the wife's right, she being a mother, to prosecute an action, using his name, does not depend on his consent, but it is a legal right secured to her in such cases, free from and beyond the control of the husband. (Sec. 51, Civil Code).

2.

Whilst it is more strictly conformable to the rules of pleading, as required by section 51 of the Civil Code, that the husband should be a party, yet, when he has been made a party, and then dismissed from the record at the defendant's instance, they are precluded from afterwards setting up this, their own error. The judgment dismissing her suit for a horse, saddle, and bridle, is reversed, with directions to the court below to proceed to trial as the issues are now made up, unless she should move, in a reasonable time, to restore her busband's name as a party plaintiff with her, in which case she should be allowed to do so.

JAS. MONTGOMERY,

Civil Code, sec. 51.

CITED

For Appellant,

JUDGE WILLIAMS DELIVERED THE OPINION OF THE COURT:

Appellant, being a married woman, sued appellees in an action of trespass for forcibly taking from her a horse, bridle, and saddle.

Stith vs. Patterson, &c.

An amended petition in the name of her husband and herself was subsequently filed, making other defendants, and averring that the horse, saddle, and bridle were her property, and in her possession when so forcibly taken; and by order of court the husband was made a party complainant."

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Patterson, a defendant, filed an affidavit, alleging that the use of the husband's name as a plaintiff was without his authority, and thereupon obtained "a rule against the plaintiff to show cause why they use the name of Matthew Stith in this prosecution." To this rule a response was made, stating that Matthew Stith was the husband of Comfort E. Stith, was a father, and she was a mother, and that he had abandoned his family, and that the property was in her possession when taken, &c. This rule was made absolute, and the suit dismissed as to the husband, without prejudice, notwithstanding the filing, a written agreement and transfer of all his property, &c., to and with A. D. Geoghegan, making him trustee for his wife and children.

She subsequently filed another amended petition, averring the possession of the property; that her husband had abandoned her and his children before the action was begun; averring that he was the father, and she the mother, of the children; and prayed to have the cause transferred to the equity docket.

The defendants answered, traversing the petition and amendments, and subsequently demurred, "because the facts stated show no cause of action in plaintiff, and because plaintiff shows, in herself, no right to sue;" and their demurrer being sustained, the cause was dismissed; and we are asked to correct these errors, proper exceptions being taken to all the rulings of the court.

Section 51, Civil Code, provides, that "where a husband, being a father, has deserted his family, the wife,

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