Bessie v. Earle

Mr. Justice Heydeneeldt delivered the 'opinion of the Court.

Mr. Ch. J. Murray concurred. The proper decision of this case rests upon the question whether the property sued for was or was not the separate estate of the plaintiff, and there is nothing in the record, which settles that question.

To be the wife’s separate estate, it must have [201] been conveyed *to her before marriage, or, if after wards, it must have been by gift, devise or descent.

The declaration has two averments, which are in direct conflict. It avers, first, that the property was' acquired subsequent to the marriage, and then, that the-marriage took place subsequent to the acquisition of the property. There is no averment that the acquisition was by way of gift, nor in the finding of the jury is there anything decisive of the character of the estate held by the plaintiff.

It is true that the District Judge, in stating his legal conclusions, says that the leased premises was the property of tfie wife, acquired during marriage, by gift from her father, but how he derives that fact, we are unable to ascertain, and as it is not his province, where a jury tries the case, to pronounce upon the facts, no weight can be here given to his naked declaration.

The judgment is reversed and the cause remanded.