FRANKLIN, January, 1842. Thayer V. valuable consideration. It was held, by the Master of the Rolls, that the widow, before she could have a decree for her customary share, must first disclaim all benefit under the will, and that the bond, being in the nature of a voluntary gift, was fraudulent as to the customary share of the wife, Thayer et al. and should not stand in her way. He adds, "such sort of contrivances to evade the custom, have always been set aside in this court." In City v. City, 2 Lev. 130, the deceased had, by deed, assigned a term to his son as a provision, and the son had gone into possession, and it was held this did not bar the widow of her customary share, the assignment being without consideration, and it was said, “the same is the law as to goods." In Smith v. Fellows, 2 Atkins, 62, a voluntary deed of a lease-hold estate to a son was set aside, and the widow's customary share decreed to her. The husband, it was said, notwithstanding the deed, was still seized of the lease-hold estate, and in the same case, before the Chancellor, 2 Atkins, 377, he says, "it was a plain fraud upon the custom." In Hall v. Hall, 2 Vernon, 277, it was held that if a freeman gives away goods in his lifetime, and yet retains the deed of gift in his own power, or retains the posession of the goods, or any part of them, it is a fraud upon the custom, and will not conclude the widow, and in the case of Fairebeard v. Bowers, 2 Vernon, 202, a voluntary judgment by a freeman of London, payable after his death, was postponed to the widow's claim for her customary share. A contrivance to evade the rights of the widow under the statue should not meet with more favor. The custom of London and the statute of distribution are each equally imperative in furnishing a rule of property, and to withdraw a case from their operation, to the injury of the widow, under a contract made mala fide, and without consideration, would be a fraud upon the law and upon her rights. In Holmes v. Holmes, 3 Paige, 363, the Vice Chancellor held, that a conveyance of personal estate to take effect after the decease of the husband, and made with the intent to defeat the widow of her distributory share, under the statute, was a fraud upon her. Though this decree was reversed by the Chancellor, yet I think the opinion of the Vice Chancellor the better reason. The Chancellor evidently pro FRANKLIN, ceeds upon the same ground that is assumed by the Connecticut court in the case of Stewart v. Stewart. January, 1842. Thayer v. Thayer et al, The Chancellor supposes that the wife and the children, both stand upon the same ground, and that neither have any such rights, in the life time of the ancestor, as to be the subject of fraud. But there is a manifest difference. The ancestor may, by will, exclude entirely the children from all participation in his estate; not so the wife. The children are not heirs so long as the ancestor lives, and have no inchoate rights as such. The husband and the wife each acquire their marital rights, in one sense, as purchasers, and upon valuable consideration. In the language of Sir Joseph Jekyll "the marriage, and its attending rights and disabilities, is a consideration moving from each of the contracting parties to the other." In Douglass & wife v. Ward, 1 Cases in Chan., it was expressly adjudged that marriage was a good consideration to make the feme a purchaser. But in the case now before us, there was no delivery of personal estate. The contract provides for the distribution of such as should remain and be on hand at the time of the death of the ancestor, and the lease, or demise, (as it is called,) to him, secures him in the possession and use of it during his life. Both contracts being made at the same time are to be regarded as one, and it is expressly provided that the deceased should retain the possession, as well as the use, of the property, and he in no way abridged himself of its control. None was to be distibuted, under the trust conveyance, but such as should be on hand at the time of the death of the ancestor. A gift is not consummated, nor the ownership of the chattel changed, until a delivery. 2 Johns. 52. 7 Johns. 26. 18 Johns. 148. In a case in 3 Anstr. 882, reported also in a note to 5 Vesey, Jun. 266, the father covenanted upon the marriage of a daughter to leave her, by will, an equal share of his personal estate with her brother and sister. To elude this covenant, the father, in his life time, conveyed stocks to his son, reserving to himself the dividend during his natural life. It was held, in the house of Lords, that as the ancestor reserved in his own hands the stocks, by taking the dividends during his life, he was, at the time of his death, the owner of the stocks for all beneficial purposes. The court did not per mit the right of the daughter to her testamentary portion, according to the covenant of the ancestor, to be eluded by an act not to take effect against his own interest, but only at a time when it would cease. This is like the case now under consideration. The position taken by counsel, that the widow is barred of any claim, by reason of her having left her husband before his death, cannot be sustained. It is undoubtedly true that previous to the separation, there had been some family discord; the deceased had a family of children, grown up, by a former wife, and a part of them living in the same family; and the oratrix had children by a former marriage, and was a second wife. Under such circumstances, it is not an uncommon thing for jealousies to spring up and end in strife, but it is of no importance to inquire into the merits of the controversy, or who might have been most to blame. The evidence tends to show that the separation was in the end by the mutual consent of husband and wife. Indeed, the consent of the husband seems to be involved in the fact that the small amount of property carried away by the wife, was delivered to her, by the husband, for the specific purpose of carrying away, and was taken with his approbation. But, be this as it may, there is nothing in the evidence that can bar the widow's rights of dower, or her right to a distributory share. Though the wife might have been indiscreet, and have left the husband without a justifiable cause, still this would not work a forfeiture of her rights. The conclusion, then, to which we come, is, that the oratrix had, in the life time of her husband, such rights as should be recognized, protected and enforced; that the attempt to elude these rights, in the manner disclosed in this case, was mala fide, and a fraud upon the law and upon the marital rights of the oratrix, and that, as a consequence, the husband, so far as respects the widow, must be regarded, at the time of his death, as being the owner and having the seizin of the property in question. This result, we think, is in accordance with well settled principles, and such as sound policy and justice dictate. The decree of the chancellor, then, is affirmed with costs in this court, with this modification, viz: that the time for FRANKLIN, January, 1842. Thayer v. Thayer et al. January, 1842. FRANKLIN, the payment of the sums decreed by the chancellor is to be extended to the 15th of June, A. D. 1842, and the cause is remitted to the court of chancery to be proceeded with accordingly. Thayer 0. Thayer et al. JOHN MINKLER and others, appellants, v. The Estate of PETER MINKLER, appellees. If a testator execute his will, and the will is not to be found at the time of his decease, this raises a presumption of his having destroyed it with intent to revoke it. But this is a presumption of fact, merely, which may be encountered by contrary proof, and the will thus established. THIS was an appeal to the county court from a decree of the probate court for the district of Grand Isle, disallowing a paper presented to said probate court as a copy of the last will and testament of Peter Minkler. On the trial in the county court, the appellants exhibited a paper, in the form of a will, executed by Peter Minkler, deceased, and proposed to prove, by parol, that the said Minkler, on or about the 7th day of January, A. D. 1839, did execute a will, corresponding with the paper so exhibited, and that said will was never revoked by him; but was, by some means unknown, lost or destroyed previous to his death. This evidence was objected to as incompetent, but was admitted; whereupon it was proved, by parol, that such a will was executed at the time aforesaid, by said Minkler, with all the formalities required by law for a legal will of real as well as |