Wells, executor, &c., v. Bransford. "Exhibit A", referred to by this witness, is a writing signed by Abram Bransford, endorsed "E. H. Ayres with John C. Ayres", and in the following words: "Whereas, it is expected that Elizabeth H. Ayres and Abram Bransford will be married in the course of a few days, and she, the said Elizabeth, being desirous of making some provision of the negroes that she now owns, as follows: Provided it should be so ordered by Providence that she, the said Elizabeth, should have children, the said negroes is to go to them; and if the said negroes should overgo an equal proportion with my children, then shall no deduction be made off them; though it is to be understood that they shall be put on equal footing with my other children, provided the above negroes should fall short, by death or some other disaster. Given under my hand, this, the 27th day of June, 1832." "The defendant then introduced as a witness Mrs. Elizabeth Collier, who testified, that the deceased, some time in July prior to her death, came to her house, in company with two neices, the legatees mentioned in her will, and requested witness to send to Triana for Dr. Debow, M. A. Lewis and James S. Lewis, who were the attesting witnesses of the will propounded for probate,-that she wanted to make a will. Witness asked her, if her husband would be there; she said, 'No, that she did not want him to know it, that she was going to make a will without his knowledge or consent. Witness went out, to call a servant to send; and when she returned, the deceased informed her, that she need not send, -that she would postpone making it. The deceased told witness, on that occasion, that her husband was unkind to her, and, if he should know of her making a will, would treat her with greater unkindness; but witness, who had visited in the family, never saw any unkindness. The deceased also enjoined secrecy on her; and said to her, in this conversation, that there was no marriage contract between her and her. husband, that there was a writing, but it did not amount to a marriage contract. There was no evidence as to what the deceased considered a marriage contract. This witness further stated, that said deceased, within a few years after her marriage with said Bransford, told witness that she wanted her to persuade her husband (Abram) to make a mar Wells, executor, &c., v. Bransford. riage contract,-that there was a paper, but it did not amount to a marriage contract. "The defendant then introduced as a witness Sally Bransford, who testified, that she was the wife of the defendant's son, and had lived in the defendant's house for about two years prior to his wife's death; that she never saw any unkindness between them; that Mrs. Bransford, the day she went to Vanhook's to make her will, came into her room, and told her that she was going to see Mrs. Pritchett, who was very sick; that Mrs. Pritchett's husband came for her; that, when she returned the next day, she said Mrs. Pritchett was much better and had been able to get up to breakfast. This witness said, that she heard Mrs. Bransford, some six or eight weeks before her death, say that she had made no marriage contract with her husband when she married, and that she did not think it right to do so, as it had a tendency to interrupt the harmony of families; that this conversation took place in the presence of witness and a Miss Harrold, a half-sister of witness; that the deceased made the remark in reply to Miss Harrold, who told her of the marriage of some young lady who had made a marriage contract; that the conversation occurred in witness' chamber, at Abram Bransford's residence; that Miss Harrold and the deceased were sitting up with her child, who was sick. To show that this witness had made different statements about this conversation, and to discredit her, the plaintiff read her two depositions taken in this cause", in which she gave the following accounts of it: "Said Elizabeth told me, some short time before her death, some seven or eight weeks, that there had never been a marriage contract between her and her husband, that she believed such a thing had a tendency to create bad feelings. This conversation took place in the company of several persons, and originated in this way: One of the company mentioned a young lady getting married and making a marriage contract; when Mrs. Bransford replied, that she did not think it right, that she did not make one when she married Mr. Bransford, and that she thought it made interruptions between man and wife." "The conversation alluded to took place at the house of Mrs. Bransford, where I was at that time living as a member of the family, some time in June or Wells, executor, &c., v. Bransford. July, 1851. Those present at the time were, old Mrs. Bransford, deponent, and a half-sister of deponent's by the name of Ann Harrold." The defendant then read to the court the written notiee, which the proponent had served on him, to produce on the trial the marriage contract between himself and his wife, and produced the paper above set out as "Exhibit A" to Hurt's deposition. The body of the instrument, and the signature, were proved to be in the defendant's handwriting, and the endorsement on it to be in the handwriting of said Ayres, who was proved to have died in 1837. He also introduced as witnesses Samuel Cruse, Geo. P. Beirne and John J. Coleman, for the purpose of proving by them, as experts, that the writing was as old as it purported to be; and the court admitted their evidence, against the proponent's objection. On this evidence, the defendant offered to read the instrument, as original evidence, and as responsive to the notice. The proponent objected to its introduction, on the ground that its execution and authenticity were not sufficiently established, that it was not the contract called for by him in said notice, and because he had not called for it at the trial in pursuance of said notice. The court allowed it to be read as evidence, and the proponent excepted. The proponent propounded interrogatories under the statute to the contestant, but declined to read his answers thereto on the trial. The defendant offered to read the first and third interrogatories, his answers thereto, and the jurat; "and stated, that he did not offer them as evidence of the facts stated in said answers, but merely to show that he had made such answers at that time, to be considered by the court, in connection with the testimony of John H. Hurt, as to defendant's declaration that he had burnt the marriage contract." The plaintiff objected to this; but the court overruled his objection, and he excepted. "This was all the evidence in the cause; upon which the court dismissed the proponent's petition, and refused to admit the will to probate." The proponent excepted to this ruling of the court, and now assigns it for error, together with the rulings on the evidence above stated. Wells, executor, &c., v. Bransford. ROBINSON & JONES, for the appellant, contended, 1. That the evidence establishes the fact that there was a marriage contract; and a married woman, possessed of a separate estate, may bequeath it, without or against her husband's consent.-Fettiplace v. Gorges, 1 Vesey, jr., 46; Burton v. Holly, 18 Ala. 408. 2. That the paper produced by the defendant below was not the marriage contract to which the witnesses deposed; but, even under it, the wife took a separate estate. By its terms, the husband took an estate for the life of the wife, while the remainder in the property was reserved to the wife's children. He therefore held the remainder, not as husband, but rather as a trustee for such children as might be born to the wife.-3 Stew. 172, 375; 9 Port. 636; 4 Stew. & P. 286; 20 Ala. 338; 11 ib. 207; 4 ib. 350. 3. That the wife had a right to make a will, whether she had a separate estate or not; because the English law, which held her intestable solely on account of her husband's right, was not of force in Alabama.-Vanderveer v. Alston, 16 Ala. 494; Randall v. Shrader, 17 ib. 333; 2 Bla. Com. 498; 1 Wms. on Executors, 42; Roper on Husband and Wife, 170; Osgood v. Breed, 12 Mass. 525; Burton v. Holly, 18 Ala. 408. 4. The litigation as to the marriage contract is not conclusive, and ought not to be allowed in the probate court. In England, a prima facie showing only was required.—1 Phill. 352; 3 Add. 235. 5. The court erred in permitting the contestant to use his answers to the interrogatories for any purpose.-Branch Bank v. Parker, 5 Ala. 731; Roberts v. Trawick, 22 ib. 491. S. D. CABANISS and J. W. CLAY, contra, submitted written arguments, in which they made the following points: 1. A married woman, at common law, was utterly incapable of making a will or testament, without the consent of her husband; and the only exceptions to the general rule were, a testamentary appointment under a power, properly executed, and a bequest of her separate estate.-1 Williams on Execu tors, 45-51; 1 Lomax on Executors, 11; 2 Bright on Husband and Wife, 39; 2 East, 555; 1 Vesey, jr., 48; 2 Eng. Ch. R. Wells, executor, &c., v. Bransford. 26; 4 Man. & Gr. 1076; 3 Cro. Car. 106; 4 Viner's Abr. 164; Sheppard's Touchstone, 402; 2 Wooddeson's Lectures, 459; 2 Coke's R. (pt. 4) 61. But a general assent by the husband, that the wife may make a will, is not sufficient; it must be shown that he assented to the particular will made by her.-2 Bla. Com. 498; 2 Str. 891, 1111, 1118. 2. To entitle the will of a married woinan to be admitted to probate, it must be proved to be within one of the exceptions to the general rule; and, in this case, since the husband's consent was expressly disproved, it must be proved that the property embraced in the will was the separate estate of the wife. The only evidence adduced of this fact consisted of the loose and inconsistent statements of two witnesses,who were ignorant of all the legal rules for the construction of writings, who had not for many years seen the paper of which they spoke, did not agree as to its contents, and could not recollect all its provisions. Such evidence is entirely too indefinite, uncertain and unsatisfactory to establish the terms of a written contract, which no lawyer would undertake to construe without having it before him.Mitchell v. Gates, 23 Ala. 438; 9 Wheat. 597; 1 Peters, 6004 2 Mason, 468. 3. The probate court was not limited in its inquiry to the factum of the will, but might well examine and determine whether the testatrix had any property which could pass under it.-Osgood v. Breed, 12 Mass. 533; Yates v. Will, 2 Dana, 215, cited with approbation in 18 Ala. 426; Holman v. Perry, 4 Metcalf, 492; Mullins v. Lyles, 1 Swan, 337; Brook v. Turner, 1 Modern, 211. In England, the proponent of a will, which professed to be made in execution of a power, was not held to strict proof of the execution of the power, because chancery was the proper forum for the determination of that question; and in cases of that character, the probate of the will, so far as the validity of the appointment was concerned, was not conclusive on the rights of the parties contesting it. But the organization and powers of our probate courts are different from those of the ecclesiastical courts in England, from whose sentences there was no appeal; and there seems no good reason why they may not finally adjudicate questions as to proper execution of such |