| Md. | Nov 1, 1866
delivered the opinion of this Court.
In the case of Michael vs. Baker’s Ex., 12 Md. Rep., 158, it was held that the Orphans’ Court in passing upon the question of admitting to probate the will of a married woman, were not required to decide what property would pass under the will, such inquiry properly belonging to another forum, hut the form and attestation of the instrument being sufficient, the duty of that Court would be to admit it to probate. By'the probate nothing is determined but the factum of the will, not the right of disposal, and this for the reason that “perhaps if no probate were granted the person to whom the property is left might be unable to recover it.” Under that decision, the will in this case being executed and attested in conformity with the Code, Art. 93, secs. 300, 301, and Art. 45, secs. 1, 2, there was ■no error in admitting it to probate. It appears, however,
In the case of Cooke vs. Husbands, 11 Md. Rep., 492, decided at the December term, 1857, it was for the first time definitively declared to he law in Maryland, “that whore property is given to a feme covert to her separate use simply, without restricting her power of disposing of it, or prescribing the mode in which that power' is to he exercised, she may act in reference to the disposition of it as a feme sole. ” This decision was followed in Michael vs. Baker, 12 Md. Rep., 158, Chew’s Adm’r vs. Beall, 13 Md. Rep., 348, and in other cases, and must be considered as the settled law of the State.
So stood the law before the adoption of the Code. The property of the testatrix being limited to her sole and separate use under the deed of her grandfather, without any restraint upon her power of disposition, it follows from the decisions cited that she had the power to pass it hy her will made and attested as if she were a feme sole, such property not coming within the provisions of the Act of 1842, ch, 293, sec. 6, that section referring only to the general property of tho wife, not held by her to her sole and separate use.
We now come to consider what change, if any, has been made by the Code in the pre-existing law on this subject.
It had been decided by the Court of Appeals in Schindel
This decision was afterwards followed and explained in Bridges & Woods vs. McKenna, 14 Md. Rep., 258. See also, Mutual Insurance Co. vs. Deale, 18 Md. Rep., 26. Weems vs. Weems, 19 Md Rep., 334. Property so held by a married woman, she could not dispose of by last will except with the consent of her husband, and by an instrument executed and acknowledged as prescribed by the 6fch section of the Act of 1842, ch. 293.
By the Code, Art. 45, secs. 1, 2, the Legislature saw fit to change the law and to carry out what seemed to be the intention of the constitutional provision, ( Art. 3, sec. 38, Const, of 1851,) by enacting that “the property, real and persona], belonging to a woman at the time of her marriage, and all property which she 'may acquire or receive after her.marriage by purchase, gift, grant, devise, bequest, or in a course of distribution, shall be protected from the debts of her husband, and not in any way liable for the payment thereof and that such property shall be held by her “for her separate use with power of devising the same as fully as if she were a feme sole, or she may convey the same by a joint deed with her husband.”
Thus we perceive that the rights and powers of a fame covert over her property have been enlarged by these provisions of the Code. But inasmuch as there were cases in which this provision of the Code could not have effect, by ■reason of existing marital rights of a husband previously ¡acquired, and in which the fame covert would have no power to make a will disposing of her general property, except
In regard to which, property it is plain that the 1st and 2nd sections of Article 45 are applicable.
In this case the property of the testatrix was acquired long before the adoption of the Code, and the counsel for the appellant relies upon the last clause of sec. 308, Art. 93, to show that the will before us is inoperative to pass it, because not executed and acknowledged as required by that section.
It will appear, we think, from what has been already said that such is not the true construction or legal effect of these provisions of the Code.
The power of the testatrix to dispose of her property by such an instrument as the will before us, was not derived alone from any provision of tbe Code ; under the decisions of this Court before cited it would have been a good will to pass the property in question if executed by a married woman before the Code was adopted, and notwithstanding the provisions of the 6th section of the Act of 1842. The property being held "by her to her sole and separate use, that Act did not apply to it, and when re-enacted in the Code it must have the same operation and effect, and cannot he construed as abridging or taking away the power of the testatrix to dispose of her property by will executed as if she were a ferae sole.
The order will be affirmed with costs to the appellee.
Order affirmed.