By the Court.
Lumpkin, J.delivering the opinion.
Whether the testimony of Jacob Chance was, or was not admissible, it is useless to enquire. The merits of this case depend upon the law of the case, arising out of the deed made by Calvin B. Churchill to his wife Mary, and as there was no motion made for anew trial, all minor and immaterial matters should yield to that. What will it profit the plaintiff in error in the end, to carry these outposts, provided the citadel cannot be stormed ? How much time and money are wasted in pressing these immaterial points. The most that can be said against this evidence is, that it was-irrelevant; and of course the legal rights of the parties growing out of construction of the instrument already referred to, cannot be affected by it.
Was Col. Berrien a competent witness under the facts disclosed by this record ? We ask why not ? The facts testified to by him occurred in another case, notin this; and previous to his employment in the present case. The witness neither comes within the letter nor the spirit of the statute of 1850, excluding the testimony of attorneys in certain cases. Cobb 280.
But reject the evidence of this witness, and still there will be sufficient proof left to sustain the verdict. Navy proves-the destruction of the records; and the extract from the minutes establishes the probate of the paper.
It is contended that proof should have been made in the Superior Court of the execution of Mrs. Churchill’s will. The *490ease of Rick vs. Cockell 16 Ves. 369, 376, relied on by counsel in support of this proposition was pending in a Court of Equity; whereas the suit before us is an action at law. The rule of evidence may be different. This will ¡was offered and received in evidence not to show title in 'Mary Churchill, or the claim of title by her; but to prove, that the power vested in her by the deed of Calvin B. Churchill had been executed. And in this view it was clearly proper. Because, without the execution of the power, the property would have passed to her surviving husband as heir at law. Admitted in evidence, it showed further, and properly too, ihat the title vested in her by the deed of Calvin B. Churchill trad been cast upon the plaintiff as her administrator, with the will annexed.
As to the general proposition, that the will of a married woman, made in the execution of a power, is not competent testimony, without actual proof of its execution in any and every Court where that power and its exercise are called in question; we maintain broadly, that it is not necessary in this State, that any wiil, whether of realty or personalty, should be proven, when offered in evidence as a muniment of title. But that a certified copy, from the Ordinary, under the seal of that Court, makes it evidence. This results necessarily from the fact, that by law, Courts of Ordinary in Georgia, are clothed with original, general and exclusive jurisdiction, except by appeal, over testate and intestate’s estates. And are also Courts of record. It is here, that the validity of wills must be tried and established. In this case, the extract from the minutes of the Court demonstrates, that the Ordinary did pass judgment upon this paper, ordering it to be recorded, and the copy is certified by the Ordinary. It being in proof, that both the original will and record were burnt after probate; the certified copy obtained before the burning is good, as secondary evidence. 1 Wms. on Ex’ors. 157, 158, 159.
Again it is objected, that the recitals in the order of the *491Court 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 Atkin, 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 *492years 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 eifect 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 cart be no dispute; that she has executed this power in a lega1! way, is equally clear. But she had something more than & 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 b3r 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 *493the express power to dispose of that remainder, appearing upon the face of the deed, and the execution of the power Slaving 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 deáth 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.