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Churchill et al. vs. Corker, adm'r.

Court of Ordinary offered by plaintiff below, were not evidence against the defendants. The judgments of the Court of Ordinary import verity, as much as the judgments of the Superior Court, and are therefore at least presumed to be true, until those who dispute them, can show the contrary.

It is insisted that a separate estate in the wife is not created by the deed made by Churchill, and that the estate attempted to be given, being a remainder in fee, not for her sole and separate use, the husband became entitled to it; and hence the plaintiff cannot recover. We are not prepared to admit, that a separate estate in the wife was not created by this deed. But suppose it did not, a husband may clearly make a gift to his wife, which will be good as against his personal representatives. 1 Alkin, 271; 3 Atkin, 393, 394; Ram on Assets, 213.

In Hovenden on Frauds, 271, and Swinburn "on Wills, part 11, section 9, this doctrine is laid down : Any consent on the part of the husband given after marriage, that the wife may dispose of personalty by will, if such consent rests merely in agreement between the parties themselves, and be not guarantied by bond, may be retracted, at any time before assent given by the husband, to the probate of such will. In the case before us, the agreement rested in and was guarantied by a solemn conveyance from the husband to the wife.

But that is not all. The will of the wife was proven, in November, 1843; the husband not appearing to contest it. The husband died in 1855, more than eleven years after the probate of his wife's will. He never sought to disturb it by calling on the executors to prove it in solemn form or otherwise ; nor in any other way seeking its revocation. It is still of force and unrevoked. Nay more; by the Act of 1845, passed ten years before the husband's death, the time within which proceedings for correcting or setting aside any will, or requiring proof in solemn form, may be instituted, is limited to seven years. The husband then having lived ten

Churchjil et al. vs. Corker, adm'r.

years after the passage of this law, and having died acquiescing in the probate of his wife's will, it is too late for volunteers under him to rise up and attack the probate, directly, or indirectly. The husband's consent will be presumed. The probate is conclusive under the statute against all the world. The effect of the will is the only open question.

For myself, I am free to confess, that I have but little taste, perhaps for want of discrimination, for the nice distinctions that have been submitted in the discussion, as to the nature of the estate given by the husband to the wife, in this property. That she had the power to dispose of it, there can be no dispute ; that she has executed this power in a legal way, is equally clear. But she had something more than a mere power of disposition. It was a power coupled with an interest. Had the wife survived the husband, the life estate reserved to the husband having terminated, the whole estate would have vested at once absolutely in her. But the wife dying first, all she could do was to execute the power given to her by disposing of the property which she did by will. None of the views presented by the learned counsel, have caused this Court to hesitate in holding, that the wife had authority under the deed from her husband to execute the power delegated to her, by disposing of the property by will, in the manner she has done. The husband intended by his deed to divest his marital rights over this property, except as to its enjoyment during his life. For this purpose he interposed trustees. For this purpose he invested his wife with the power of disposition. Henceforth he parted with the dominion over this property ; retaining the usufruct only; the power of alienation was gone; so too the power of disposition by will; so its inheritable quality passed away from him.

What then, if the Court did refuse to charge, that the wife took a vested remainder in the property, and that the husband thereby became entitled to it; counsel have no reason to complain of the refusal of the Court to charge this; since

Churchill et al. vs. Corker, adm'r.

the express power to dispose of that remainder, appearing upon the face of the deed, and the execution of the power having been proven, it prevented the husband from taking, whether she had a vested remainder or not.

It is further assigned, as error, that the Court refused to charge, that if a separate estate was created in the trustees, the trustees, should have sued, and not the plaintiff.

Without saying more upon this head, it is sufficient to remark, that upon the death of the wife, the probate of the will and the death of the husband, the property vested in the legal representative of the wife; whenever the remainder vested in one capable of taking and holding, the trust, being functus, would cease of course; and no estate whatever remained in the trustees.

Counsel find fault with the Court for telling the jury not very emphatically to be sure, that "he believed there was some proof,” that Calvin B. Churchill got the property in dispute by his wife. Chance, one of the witnesses, swore to it, positively; and there was no evidence to the contrary; there was no dispute about the facts; and this was conceded by counsel in arguing before the jury as admitted here. Surely then, the Court did not trench upon the province and privilege of the jury in saying, “ he believed” there was some proof upon this very immaterial point. He did not say, that the fact was or was not proven, which by the Act of 1849, is prohibited; but stated merely that there was some proof “he believed” to a certain point. This is not forbidden by the statute.

I fear I shall weary the profession with this case. Some of the smaller grounds, may have been overlooked. Suffice it to say, they are all overruled, and the judgment of the Circuit Court affirmed generally.

Judgment affirmed.

Martin vs. The State.

GREEN MARTIN, plaintiff in error, vs. THE STATE OF Geor

GIA, defendant in error.

[2.] When two persons are indicted together, and a true bill found against both, bat

one only is arrested, arraigned, and put upon his trial, a general verdict, “We the jury find the defendant guilty,” is sufficiently certain as to the individual interded.

[2.] A juror who, while consulting with his fellow-jurors in a criminal case, refers to

another offenco, alleged to have been committed by the defendant, saying " he is a bad man ang how," and especially if he acknowledges that this other imputed crime influenced the jury in convicting the accused, evinces a bias of mind that disqualifies him from serving as a juror.

Decided by Judge

Murder, from Washington county. HOLT, March Term, 1858.

Green Martin was indicted for murder of his negro.
Upon the trial the following evidence was adduced :

Dr. Lucien Q. Tucker being sworn: I am a physician; I was practicing on the 9th day of May, 1857; I was requested by Mr. Martin to examine the negro boy; this was on the 11th May, 1857. I examined; Green Martin asked himself; I found the boy disfigured by bruises; I had no instruments ; I did not probe the wounds; the bruises were on his breast, sides, wrists, and ankles, and his face; I borrowed a pocket knife and cut into the boy's neck, and found a dislocation of his neck; his name was Alfred; he was the property of Green Martin ; was taken out of the grave; I suppose a dislocation of the neck caused his death; bruises were severe, and on the side the skin was broken, produced by violence; they were caused by something hard; the appearance of the bruises around the wrists and ankles were caused by a rope; the bone upon which the head rests is called the atlas; it was dislocated; a fall will produce dislocation; the fall must be violent; a fall backwards from a chair has produced it; a jerk may produce it; choking without a jerk will not; the boy was disinterred; does not know how long the boy was buried; judging from the wounds, they appeared to

Martin vs. The State.

have been of recent date; suppose the boy's neck had been dislocated; he found that, and knew it was sufficient; the boy was buried in an old field belonging to Thomas Wright, of Washington county, about one mile and a half from the residence of the defendant; the dislocation of the atlas causes death by pushing forward, and presses upon the wind-pipe, and causes suffocation; appeared of recent dateof few days.

Cross.—I was called for a post mortem examination; I found him at the grave; the grave yard was a negro grave yard; I saw other graves there; I can't tell how many places the skin was broken in exactly; I remember two, I found one in his side; the body was swollen very little; I can't tell the depth of the bruises from external appearances; the one on the side was cut through the skin; after a dislocation of the neck ou the ground, the person could not rise again; witness thinks pushing the bone forward would produce strangling; the witness says that a dislocation of the neck caused the death of the boy. I cannot say that the bruises produced the death; the witness says that the grave did not present the appearance of concealment; he says Mr. Martin asked him to go and examine the boy; it was at the Coroner's request; some person was with Mr. Martin when he asked him, but he does not remember who; the dislocation of the atlas will cut off all connection between the body and brain; all action afterwards would be but spasmodic-death would instantly ensue.

Miss Catharine Martin sworn and says: I am the daughter of Green Martin ; I reside at my father's house in the county of Washington; I have resided at home, my father's, ever since the 9th of May, 1857. My father is the owner of slaves; he owned a negro boy by the name of Alfred; the boy is dead. He died on the 91h of May, 1857, at my father's house in the county of Washington, State of Georgia. My father, two sisters, and my brother Godfry and myself were present. My brother Godfry is not present in the coun

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