McCord v. McCord

19 Ga. 602 | Ga. | 1856

By the Court.

Benning, J.

delivering the opinion.

[1.] The question is, whether Mrs. McCord, a married woman, had power to make the will which it appears that she did make ? That depends upon the degree of power which she reserved to herself by the marriage settlement which she entered into with James R. McCord.

It is clear that the estate which she reserved to herself in her property, was as much as a separate estate for her life.

Did she reserve a separate power over more than a life estate in the property ? This .is the important question.

We think she did. We think she reserved all power over át. The last clause in the settlement is in these words : “And each to have a sole and separate control of their own estate which they have before the solemnization of the mar■riage aforesaid.”

There can be no doubt that we are right in this opinion, if the word “ which” has the'word “control” for its antecedent.

■ And unless it has, there can be no use for the clause. Unless the clause means to say that the control which each .party was to have, was to be the same which such party had before marriage, it adds nothing to the previous part of the instrument; for the clause can have but one other meaning, and that is this: that as to such “ estate” as each party had before marriage, such party is, during life, to have the solo and separate control of it. But this is a meaning most fully conveyed in the previous part of the instrument, which gives to each party a sole and separate estate in such property for life.

The word “ which,” then, must be construed, wc think, as referring, not to the word “ estate,” but to the word “ control,” for its antecedent.

If so, it follows that Mrs. McCord reserved to herself the power to make this will; for it follows that she reserved to herself all the “ control” over her estate which control she had before marriage. And a feme sole has all power over her estate.