Shaw v. Dawsey

26 S.C.L. 247

• Court: Court of Appeals of South Carolina
• Decided: February 15, 1841
• Status: Published

Opinion

Curia, per

O’Neall, J.

In England, I concede, the will of a feme covert, in execution of a power, must be proved in the Spiritual Court, before the Court of Equity will read it. (Sug. on Po., 329. But I do not understand that such a Court has original jurisdiction of the probate of such a will. It is only when such a.paper is presented to the Court of Equity, that it is sent down to be there proved. If, however, a different practice there prevailed, the Act of 1134, (P. L., 139,) compels us to adopt it here. For it provides “ that any will or testament made, or to be made, by a feme covert, idiot, or any person of non-sane memory, shall not be good or valid in law, any thing hereinbefore to the contrary notwithstanding.” It is impossible for a Law Court to say that a paper declared by an Act of the Legislature to be void, is still to be proved and allowed to have legal effect. It can neither operate as a will or testamenb But bi equity, it will be allowed, (if it has in *other respects the legal requisites,) to operate as an execution of the power contained in the deed of marriage settlement. That Court may send it down to be proved before the Ordinary, if they think it can be regarded as an execution of the power.

The motion is dismissed.

The whole Court concurred.