9 Ga. 199 | Ga. | 1850
By the Court.
delivering the opinion.
Sarah McColler (afterwards Mrs. Wiggins) made her will, disposing of her separate property to Amelia Atwell, by virtue of the power contained in the marriage settlement, and the only question made by the record on this branch of the case is, as to the validity of the will, without the consent and approbation of the trustee.
The Court below held, that the consent and approbation of the trustee was necessary to make the will valid, according to the terms of the marriage settlement; whereupon the plaintiffs in error excepted. It is insisted, on the part of the plaintiffs in error, that although there is a specific mode pointed out in the marriage settlement, as to the disposition of the separate property by will, yet that does not preclude any other mode of disposition, unless there are negative words restraining the exercise of the power of disposition, but in the very mode pointed out. On the other hand it is contended, that according to the true intent and meaning of the marriage settlement, she was not to dispose of her separate property without the consent and approbation of her trustee, and that not having been obtained, the will is void.
That the authorities upon this question are greatly in conflict, is readily admitted; the cases, in the language of Chancellor Kent, are discordant in the application of their doctrines, and perplexingly subtle in their distinctions. 2 Kent’s Com. 165 This being an open question in this State, we therefore feel at liberty to settle it in •conformity to sound principle and public policy.
If the deed of settlement restricts her power of disposition of that property to a particular mode, it is difficult to perceive, according to principle, why the prescribed mode of disposition should not be observed. When the parties stipulate, she may dispose of her property by will It certainly cannot be under
Abraham Sego was the applicant for letters of administration on the estate .of Sarah Wiggins, and his application was resisted on tire part of Weeks and wife, on the ground, that Sarah Wiggins died testate. Abram Sego was the promovant in the cause, and it was his application for letters which Weeks and wife resisted, on the ground, they had a will.' Weeks and wife were not the promovants in the cause — they did not originate the cause by propounding the will of Sarah Wiggins for probate. Had they have done so, and the other party objected to its probate and record, on the ground that she had died intestate, then Weeks and wife would have been the promovants ; but inasmuch as Sego was the promovant in the cause, by making application for letters of administration, his counsel were entitled to open and conclude the argument to the Jury.
Let the judgment of the Court below be affirmed.