
    
      Marina Hays vs. Wm. Hays and C. D. Evans, landlord.
    
    Testator devised as follows: “ I lend unto my beloved daughter,” M. H. a tract of land, “ and at her death I lend the premises unto her children, each to be equally benefited thereby; and at their death I then give said premises to their issue, to be equally divided among them; but in ease there be no such issue, then I give it to my next of kin.” Held, that M. H. took only a life estate.
    A married woman has no power, under the A ct of 1795, to release, before a magistrate, her interest in lands when it is lessthanan estate of inheritance.
    
    
      Semble, that under the Acts of 1731 and 1767, she may release, before a judge, any estate.
    
    A magistrate’s certificate of a wife’s renunciation of inheritance is not conclusive against her: she may show that it was not, in fact, her free and voluntary act;— and, in order to show this, she may give in evidence her declarations, at the time, to the magistrate, and the subsequent declarations of the magistrate to other persons. Per O’Neall, Withers and Whimier, JJ.
    
      Before Withers, J. at Marion, Fall Term, 1851.
    The report of his Honor, the presiding Judge, is as follows:
    
      “This action was in trespass to try title. The only question submitted to the jury was that which concerned the validity of a renunciation of inheritance in the land in dispute, by the plaintiff during coverture.
    “ Henry Hays, the husband of the plaintiff, had died about two years before the trial; and the land in question had been sold, in his life-time, under execution against him; bought by Thomas Evans, deceased, in March, 1838, for $1700; sold by the sheriff, as the property of Thomas Evans, and purchased by C. D. Evans, a defendant, for $380.
    “ The plaintiff derived her interest in the land from the will of her father, Christopher Dew. He devised as follows : “ I lend unto my beloved daughter, Marina Hays, 574 acres of land,” (describing that now in question.) “ and at her death I then lend the premises unto her children, each to be equally benefitted thereby; and at their death I then give said premises to their issue, to be equally divided among them; but in case there be no such issue, then I give it to my next of kin.”
    “ I ruled a point of law against the plaintiff, arising from this clause, and the language of the Act of ’95, relating to the renunciation of inheritance, and joining her husband in a conveyance of land by a married woman, to wit, that such a proceeding by a married woman had reference to a fee simple interest. I held that it embraced the life estate of the plaintiff. This I supposed to be the only question of law presented by the case, and it was ruled in favor of appellants.
    “ After the sale by the sheriff of the land to Thomas Evans, the plaintiff having a family of children, and her husband, Henry Hays, being a drunken, thriftless man, the plaintiff, as the testimony went to shew, held to the premises with great tenacity, and before the interest of C. D. Evans accrued, had been twice expelled, once (a witness said) under the law of landlord and tenant, and again under that of forcible entry.
    
      “ It was also in evidence that after C. D. Evans acquired his interest, he had instituted proceedings to expel her and her husband, but they were not carried out. The husband did not seem to be the obstacle in the way, but the plaintiff was ; so much so, that on one occasion she was picked up and carried out by sheriff and posse.
    “ Though C. D. Evans became the purchaser of the land at sheriff’s sale in September, 1845, the conveyance to him bears date 10th April, 1846.
    “ Evan Hays, who married the plaintiff’s sister, said that C. D. Evans was at his house some time after he purchased the land (the plaintiff being then on it and working there) and said he would put her out by the tenant law. The witness expressed the opinion that he could not; Evans said, if not, he would hire hands and put her out by force. In the morning after this, he and the plaintiff met, and Evans said he thought they had better make arrangement instead of disputing about the land; she replied, all she wanted was a fair trial in Court, and if he gained the land he might have it. He answered she should not have a fair trial. Her son, Clayton Hays, described the same interview thus: Evans said to plaintiff, I suppose you are going to work that land; she answered, yes. He replied, I think you had better quit it. She said she never would, unless he would give her a fair trial in Court, and if she lost it, she would say no more about it. He said, she should not have a fair trial for it. It was not insisted before the jury, by the plaintiff’s counsel, that Mr. Evans meant any purpose of preventing justice, but this evidence was used to show that there was a purpose to constrain, as far as possible, by strong language, the will of the plaintiff, and drive her to part with her inheritance. To the same end, evidence was given of the violent threats of her husband to coerce her to surrender her rights in the land; and her son, Clayton, testified, that before as well as after an agreement with C. D. Evans, (soon to be mentioned,) the husband, his father, was in the habit, or at all events occasionally, beat his mother, though he did not say that he ever did so to compel her to yield up the land and her right to it. From other witnesses it appeared that he had threatened to compel her, and used violent language, to part with her inheritance. Thomas Evans, in his life-time, had ' authorized a proposition to be made to her, that he would give her four hundred dollars or a negro girl, not over eighteen, for a renunciation of her inheritance. The suggestion was made to her husband. He reported that she would not accept the offer, and threatened to force her. He was told, however, by Evans’s agent, that would not do.
    
      “ Finally, after some intercourse with James E. David, Esq. of Marlborough, on the part of plaintiff or her husband, or both of them, (some witnesses thought David acted as plaintiff’s adviser) there was a meeting by C. D. Evans, the plaintiff, her husband, David and some others, at the neighboring house of Whitten den, on the 17 th June, 1846, when a line of division was agreed upon by plaintiff and Evans, two trees marked to fix it, and the parties (plaintiff and Evans) agreed, in writing, that she, the plaintiff, should have one parcel of the land, (which turned out to be one hundred and twenty-seven acres,) which Evans was to convey to a trustee to hold for her use during life, remainder to her issue ; and she was to convey, in fee simple, to Evans the remainder of the tract of five hundred and seventy-four acres. This agreement was in David’s handwriting, was under seal, and had two witnesses. Evans was to procure a surveyor to run the line of partition. He did so;— conveyances were interchanged between Evans and the plaintiff and her husband, in pursuance of the agreement.
    “Leggett, the surveyor, testified that he saw no evidence of reluctance on the part of the plaintiff in signing the conveyance on her part. Seven days afterwards, Hairgrove appeared, being an acting magistrate, to take renunciation of inheritance. He said that when he arrived, Henry Hays, the husband, was in the yard, and he told him to remain there ’till he saw his wife: that he examined her privately, in the absence of her husband, and that she executed the renunciation of inheritance without objection; that she said she had promised Evans to sign, and she would. She was then residing in a negro house. On cross-examination, Hairgrove said that he asked her if she was willing to sign, and she replied as above, alluding to her promise to Evans; that he read the renunciation to her; that soon after, her husband having entered the house, he asked Hairgrove what he thought of the arrangement, and whether it would forever bar his wife and children from getting the land? He thought it would. The plaintiff then said that if she had not promised Evans she would not have signed it. Such was her language according to his best recollection. He added, that if he had known this before her signature, he would not have taken her renunciation. He did, however, leave with the conveyance, and delivered the same to Evans.
    “ A witness said he asked Hairgrove if the plaintiff signed the renunciation willingly. He answered, he thought not; but gave no reasons. This was a few days after the transaction.
    
      “ Another witness said Hairgrove told him she evidently was not willing, but as she had promised to do it she would, to keep peace at home, or to make peace; that Hairgrove had since acknowledged this was what he had said to him, but that his belief was founded upon a conversation after the execution of the paper.
    “ Evidence was given as to the value of the land. The one hundred and twenty-seven acres which was assigned to plaintiff was upland, poor, had some timber on it. One witness said some of the portion Evans got, was worth fifteen dollars per acre. The whole tract was estimated at eight dollars per acre, as an average valuation.
    “ Such are the general features of the case made by the evidence. Other particulars, perhaps, would appear from my notes, coming from the mouths of witnesses, going to develope the unhappy habits of Henry Hay, the plaintiff’s husband, in his lifetime, the destitution to which he reduced his family, the violence of his language and conduct towards his wife, and so forth. All these matters were amply discussed by .counsel; on the one side, to shew that the woman was brow-beaterr and dragooned; on the other to fortify the allegation that she had steadily held out against all such influences, adhered to the land and her right in it, with great pertinacity; that she acted wisely, seeing she could not occupy it during her husband’s life, and considering that he might survive her, in making such arrangement with Evans as secured her a home, so much needed by her.
    “ I read the clause of the Act of ’95 to the jury touching the renunciation of inheritance, and all the evidence offered in the case. I gave what illustration I could of the freedom of will required by law on the part of a feme covert, in such a transaction, and submitted to them the question of fact whether the act had been complied with in the present instance. At the conclusion the defendants’s counsel desired me to draw the attention of the jury to the agreement with Evans, before the conveyances were interchanged, as going to strengthen the defendants’s position. I declined to do more than to refer the jury to it as one circumstance in the case, and to all that had been said about it in argument, pro and con; that I would not undertake to repeat the arguments at bar on the one side or the other. They were all in possession of the jury, and to be considered and adjudged by them.
    “ They found the land for the plaintiff, and five dollars damages.”
    The defendants appealed, and now moved for a new trial, on the following grounds:
    1. Because his Honor charged the jury that the fact that the form of the statute having been complied with went for nothing, and if they were satisfied, from the evidence, that the plaintiff did not sign the renunciation freely and voluntarily, that she was entitled to recover.
    2. Because his Honor should have instructed the jury, that the evidence of the magistrate’s declarations, after his certificate to the renunciation of inheritance, as to the willingness of plaintiff to renounce, were inadmissible to prove that plaintiff did not renounce her inheritance under the terms of the Act of the Legislature, which was not done.
    3. Because the declarations of plaintiff to the magistrate, after she had signed the renunciation, that she was unwilling to renounce, were incompetent and inadmissible, to vitiate or annul her solemn act, and the jury should have been so instructed, which was not done.
    4. Because the evidence of the magistrate, that plaintiff said she signed it because she “ had promised Evans to do it,” furnished no proof that the terms of the Act of the. Legislature were not strictly complied with, and the jury should have been so charged.
    5. Because his Honor charged the jury, that the fact that the deed and renunciation were signed in pursuance of an agreement with consideration to the plaintiff, made no difference; whereas, it is submitted, that where the consideration has been given and accepted by the plaintiff, she had no right after such acceptance to repudiate, or set it aside.
    6. Because there was no sufficient evidence going to shew that plaintiff signed the deed and renunciation under duress, fear or dread of compulsion or force from any person, &c. but satisfactory proof that it was otherwise, and for a valuable consideration accepted by her, and retained by her till now.
    7. Because the renunciation was in accordance with law, and vested a good title in defendant, C. D. Evans, and the verdict was against law and evidence.
    Harllee, for the motion,
    cited Jamison vs. Jamison, 3 Whar. 547; Hunter vs. Bryan, 2 Murph. 178; 6 Blackf. 475; Mc-Neely vs. Buckner, 6 Blackf. 391; 2 Bail. 461; 2 McC. 230; 6 Vern. 411; 3 Bibb. 9; 5 Johns. R. 412.
    
      Inglis, contra,
    cited 2 Mill, 12; 1 Peters, 328; 1 Mete. 542; 1 Strob. 576; 2 Green. Ev. § 294; 12 Ohio, 364; 2 Murph. 390; 2 Dev. 311; McQueen on Hus. and Wife, 166, 146; 1 Green. Ev. §24; Chit. Con. 167; 1 Mill, 296; 2 N. & McC. 447; 3 Green. R. 60.
   The opinion of the Court was delivered by

O’Neall, J.

There are two matters in this case which, it seems to me, require decision; and when they are decided, they will dispose of the whole case.

1st. It is necessary to ascertain what was the estate of the wife, the present plaintiff, in the land, and then to enquire, whether that was the subject of release under the provisions of the 3d sec. of the Act of 1795. 5 Stat. 257.

It is plain, on the clause of the will, that she only took a life estate. Such are the words of the clause ; and at her death, it is, then, devised to her children ; and, at their death, to their issue; and, failing such issue, to the testator’s next of kin. Beyond all doubt, her children, as a class, will, at her death, take the estate as a remainder; and, then, the question may arise, whether the limitation to the issue may not be too remote, and their estate be absolute.

The case of McClure vs. Young, decided, here, in the Court of Errors, last May, puts the case, forever, at rest., in its present aspect.

Having only a life estate, it is to my mind equally clear, that it is not the subject of release, under the 3d sec. of the Act of 1795. Its words are, “ every married woman of the age of twenty-one years, who may be entitled to any real estate, as her inheritance, and may be desirous of joining her husband, in conveying away the fee simple of the sameThey shew, conclusively, that a life estate, or an estate less than a fee, was not contemplated. “Any real estate as her inheritance,” means, not such an estate as she may have inherited, but such an estate as is capable of descent and inheritance from her. The words, “ in conveying away the fee simple of the same,” clearly shew the character of the estate, which, by the law, she was then permitted to convey. It is supposed that, as she could convey the greater, she must, necessarily, have the power to convey the less estate. This is not a necessary consequence, for it must be remembered, that a married woman can only make a valid deed, in such cases, and by such forms, as the law allows.

In Brown vs. Spann, 2 Mill, 12, Judge Nott states the rule to be, that “ a married woman is not capable of binding herself by deed, unless authorized so to do by an Act of the Legislature, and then only in the manner and to the extent prescribed by such an Act.” This covers the whole question, and shuts out the possibility of the release having effect beyond the estate contemplated by the Act. By the 29th sec. of the Act of 1731, (3 Stat. 303) and the 7th sec. of the Act of 1767, (7 Stat. 196-7) amendatory thereof, a married woman may convey “ any estate or inheritance,” by joining her husband in the conveyance of the same, and acknowledging before any of the Judges, that such was her voluntary act: and .the same, upon being recorded, will bar her rights. This furnishing a remedy for the casus omissus, under the 3d sec. of the Act of 1795, saves the necessity of stretching its words beyond their proper meaning. The release, in this case, according to this view, would be inoperative, and void; but as we have not all, satisfactorily, attained this conclusion, it is necessary to look beyond it.

2. Was the magistrate’s certificate examinable, and, if so, was the jury right in finding that her act of release was not voluntary ? I have no doubt, that the magistrate’s certificate was sufficient, prima facie, for the defendants. They could have given it in evidence, after it was recorded, as a quasi record; and there rested. Until impeached, it was a perfect protection. That is the effect of Stevens vs. Doe, on the demise of Henry, 6 Blackf. 475. But the defendants did not so rest the case: — they called the magistrate, and not only proved the factum of the release, but also, that it was her voluntary act. This opened, at once, the door, not only to the reply to that evidence, that it was not so in fact, but also, to his credit, by examining him touching matters about which he had made previous inconsistent declarations. But if the magistrate had not been sworn, the same result would have followed: for his certificate is evidence, that every thing was according as is therein stated: but it is not conclusive. In this respect, it stands very much upon the footing of the subscription of a deceased witness to a deed or will. On proof of the death and handwriting, the law presumes that the witness, if alive, would prove every thing necessary to the validity of the deed or will. To destroy the legal effect of this presumption, the law permits the declarations of the witness, or his bad character, to be given in evidence. McElwee vs. Sutton, 2 Bail. 128; Black vs. Ellis, 3 Hill, 68. So here, the declarations of the magistrate were competent to shew that, notwitstanding his certificate,, the release was not the voluntary act of the wife.

I agree, too, to the proposition, so well maintained by the counsel for the plaintilf, that the magistrate ought to have cancelled the release, as soon as he ascertained, which he did before he left the residence of the wife, and while it was yet in his hands, that it was not her voluntary act. For it has no effect until it is recorded. Until then, I apprehend, it is the subject of any legal objection, and especially is it so, while it is in the hands of the magistrate. Until he delivers it, it is as nothing. As a public officer, charged with the protection of the rights of one who cannot protect herself, it is his duty not to permit a paper, which he believes to be wrong, to have the sanction of his authority.

I agree fully with the jury, both from the declarations of the wife coming from the magistrate, and the other facts of the case, that the release was wrung from the wife by the cruelty of the husband, and the paramount necessity (cieated by the act of the defendant, Evans, in demanding possession, which he might legally do) of providing a home for herself, her children, and her drunken husband. Such a release, so obtained, never, with my consent, shall bar the rights of the wife.

The motion is dismissed.

WitheRs and Whitner, JJ. concurred.

Wardlaw, J.

I concur in the result, — agreeing to the firsi position taken in the opinion.

Frost, J. dissented.

Motion dismissed. 
      
       3 Rich. Eq.
     